Marriage Alliance submission

6 October 2006
MARRIAGE ALLIANCE OF SOUTH AFRICA

SUBMISSION TO HOME AFFAIRS STANDING COMMITTEE
ON THE CIVIL UNION BILL


INTRODUCTION

The Marriage Alliance of South Africa is a Christian association representing a number of denominations, churches and religious institutions that recognise and value the institution of marriage in South Africa. We believe that the extension of the definition of marriage to include same-sex couples would seriously undermine marriage and the family as the fundamental building blocks of society.
We believe marriage is intended to be the life-long union of a man and a woman. We believe the purpose of marriage is to –
· be the foundational institution of a stable and healthy society;
· establish the proper environment for procreation and nurture of godly offspring;
· define the parameters within which we can express our sexuality in a safe and healthy relationship;
· reflect God’s love and concern for people and the church in the union of man and woman in a covenantal relationship.

In our view, marriage as a life-long union of a man and a woman, and as the safe and proper environment for raising children, is essential to secure a stable and healthy society. Children should ideally be raised in families headed by both male and female parents. A mother and a father each contribute vitally to the formation of their children’s character and the modeling of family structure. This view of the family and of that, which is in the best interests of our children, is universally recognised by most people and religions as divinely ordained, and as a key to the moral structure of a healthy society. No same-sex relationship can be equivalent to marriage, can compare to marriage, can fulfill the purposes of marriage, or should be allowed to be called marriage.
We recognise that the Civil Union Bill is the government’s response to the order of the Constitutional Court in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs requiring Parliament to adopt, within a year, legislation enabling same-sex couples to enjoy the same status, benefits and responsibilities that marriage accords to heterosexual couples. We also note that the Bill aims to grant legal recognition to civil and domestic partnerships and to regulate the legal consequences of these relationships.
We cannot in good conscience support or endorse this Bill. As explained below, the Bill seeks to legalise same-sex marriages, as well as certain other types of partnerships or unions. Our view is that whatever arrangements the State makes to recognise such partnerships or unions, it should not do so in a way that denigrates the institution of marriage and the family. Our view is that by recognising all sorts of other relationships, even for heterosexual couples, the Bill does exactly that: it undermines and devalues the institution of marriage.
We accordingly reiterate our view that a constitutional amendment defining marriage as a voluntary union of a man and a woman is the only way in which Parliament can effectively protect marriage – whatever other arrangements it may decide to make to recognise or regulate other kinds of unions. We motivate our call for a constitutional amendment in our concluding remarks.
Our submission in relation to the Bill addresses the following aspects:

1. Substantive concerns:
a. Protection of marriage officers (S 6)
b. Requirements for solemnisation and registration of civil partnerships (S 8), with specific reference to the termination of civil partnerships by separation
c. Civil partnership formula (S 11)
d. Legal consequences of civil partnerships (S 13)
e. Registration of domestic partnerships (S 18)
f. Property regime (S 19)
g. Registered domestic partnership agreement (S 20)
h. Maintenance after death and intestate succession
i. Section 30 of the Bill
j. Determination of existence of unregistered domestic partnerships
k. Protection for partners in unregistered partnerships
l. The duty of support in unregistered partnerships
m. Customary spouses v unregistered partners: spousal benefits
n. intestate succession: unregistered partners

2. Procedural concerns
a. The public hearing process and the requirements of public participation,
b. Failure to refer Bill to National House of Traditional Leaders


1. SUBSTANTIVE CONCERNS

We cannot agree to it that same-sex partners be allowed to have their relationship solemnised as a marriage (S 11). In our view the Bill moreover does not protect marriage from being undermined by various other unions and partnerships. We are convinced that the effect of making all these unions and partnerships possible will put the institution of marriage under further pressure. In our view it even encourages heterosexual couples to live together in a domestic partnership, rather than enter into marriage. Why do the drafters of the Bill find it necessary to encourage people to live together outside of marriage at all? The Bill also does nothing to promote the raising of children within a stable family environment headed by both a father and mother who are joined together in the institution of marriage. Instead, under this Bill, children run the risk of being exposed to all sorts of relationships that may very well compromise their emotional and physical health and undermine their stable upbringing. We have no doubt that this Bill will have immensely detrimental effects on our society. We now turn to several specific aspects of the Bill to which we feel led to respond.

a. Protection of marriage officers (S 6)

The protection that the Bill provides to marriage officers who object to solemnising civil partnerships on grounds of conscience is inadequate. The definition of “marriage officer” in section 1 includes persons who have already been designated by the Minister under the Marriage Act 25 of 1961. Section 6(1) requires marriage officers who object to solemnising civil partnerships to inform the Minister of Home Affairs in writing of their objection on grounds of conscience, failing which they can be compelled to solemnise a civil partnership. In other words, the Bill requires by default that every marriage officer (including a minister of religion) solemnise a civil partnership. To avoid this default position, marriage officers who object to solemnising civil partnerships must inform the Minister in writing of their objection on grounds of conscience. In the absence of evidence before a court that the Minister has received an objection of this nature, a minister of religion in a given case can be compelled by court order to solemnise a civil partnership. This arrangement puts everybody, marriage officers as well as couples, in a situation of potential embarrassment and pressure. A better arrangement would be the opposite: to invite marriage officers prepared to solemnise civil partnerships etc to apply for the appropriate designation. Couples may access the list of names at the Department of Home Affairs before they approach a marriage officer.

b. Requirements for solemnisation and registration of civil partnerships (S 8)

Section 8(5) provides that “[a] civil partnership may only be registered by prospective civil partners who would, apart from the fact that they are of the same sex, not be prohibited from concluding a marriage.” It is unclear what this subsection means. We suppose the provision refers to other impediments to marriage such as age and family relationship.
Apart from a death certificate, section 8(3) does not refer to a document that will serve as proof that a previous civil partnership has been terminated by separation. The only reference made to a document serving as proof that a previous relationship has been terminated by separation is a “divorce order”. The only type of relationship that is currently terminated by a divorce order is a marriage.
The absence of such reference suggests one of two things: 1) the drafters mistakenly omitted to make reference to a termination document for civil partnerships; or 2) the drafters believed that civil partnerships would, like marriages, be terminated by a divorce order. We believe that the second scenario is the more plausible interpretation. This conclusion seems to be supported by sections 16(3) and 13 of the Bill. Like section 8(3), section 16(3) does not refer to a termination document for civil partnerships. Apart from a divorce order, the only document that serves as proof that a previous relationship has been terminated by separation is a termination certificate, which only applies to domestic partnerships (see definition of “termination certificate”). If these sections are read with section 13, which extends the legal consequences of a marriage to a civil partnership and includes a civil partnership in the definition of marriage, then it becomes clear that the drafters believed that a civil partnership should be terminated like a marriage – by a divorce order. But then the Divorce Act 70 of 1979 would have to be amended, and yet it is not the subject of this law reform process.

c. Civil partnership formula (S 11)

Section 11 provides prospective parties to a civil partnership with the option of solemnising their union as a civil partnership or a marriage and expressly provides this option in a formula. The name of this Bill and the textual content of chapter 2 as a whole (with the exception of section 13) suggests that it does not regulate the institution of marriage, which is regulated by the Marriage Act 25 of 1961, but aims to create a separate institution governed by a different piece of legislation. The reference to “marriage” in the civil partnership formula is therefore misleading because the Bill is not meant to regulate the institution of marriage. It also amounts to a misuse of a word that is still understood to refer to a male/female union, creating confusion about the nature of the institution.
The rights to equality and dignity do not require the homogenisation of behaviour and of procedures regulating different relationships. The judgment of the Constitutional Court does not necessarily require a solemnisation procedure that mimics the procedure in the Marriage Act. A registration procedure like the one in section 18 would suffice.


d. Legal consequences of civil partnerships (S 13)

Section 13 aims to make the legal consequences of marriage apply, “with such changes as may be required by the context, to a civil partnership”. It aims to do this by redefining “marriage” in any other law to include a civil partnership as defined in the Bill [section 13(2)(a)] and “husband, wife or spouse” in any other law to include a civil partner as defined in the Bill [section 13(2)(a)]. The reference to “any other law” includes statute and case law.
Firstly, like the civil partnership formula in section 11, this section creates confusion about whether the Bill regulates the institution of marriage or aims to create a separate institution governed by separate legislation. The title of the Bill and the textual content of chapter 2 suggest that it aims to regulate a separate institution. If that is the case, then every reference to the institution of marriage should be removed from this Bill. We would also suggest that persons who officiate the contracting of civil partnerships not be referred to as “marriage officers”.
If, however, the Bill does aim to regulate the institution of marriage then, apart from our textual comments, this raises the following concerns:

· In effect, the section amends the meanings of the words “marriage”, “husband”, “wife” and “spouse” in every existing piece of legislation containing them to include, subject to context, same-sex unions. In Fourie v Minister of Home Affairs, the Constitutional Court noted that there were “at least 44 Acts of Parliament in which reference is made to ‘husband’ and/or ‘wife’ either in the body of the Act or in the regulations to the Act”. (If one includes legislative references to “marriage”, then there are statutes that are certainly more affected.) However, in one section, and without any consideration of its implications for these other laws, these words are amended in these statutes. Such amendments are improper. The words “marriage”, “husband”, “wife” and “spouse” in every affected statute will have to be reconsidered in order to determine the impact of this sweeping change.
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· The section contradicts the very judgment that it aims to fulfil. In the Supreme Court of Appeal judgment, the majority decided that the words “husband and/or wife” could not be read as “spouse” (as the minority judgment had held) because of the different ‘nature’ of these words. They preferred the remedy of reading-in. The judgments of Sachs J and O’ Regan J do not contradict or challenge this holding, but rather confirm it as they also preferred the remedy of reading-in. For the same reason, same-sex couples in a civil partnership cannot be included in references to “husband and/or wife”- as section 13(2)(b) attempts to do, because of the different nature of these words, even taking context into account.

· If the Bill becomes an Act, the effect of this section will be that the Marriage Act 25 of 1961 will be affected, regardless of the express exception of it. That will be so because the word “marriage” in this Act would have to include same-sex couples in a civil partnership. The combined effect of sections 11 and 13 would result in the amendment of the Marriage Act.

e. Registration of domestic partnerships (S 18)

There is no majority age limit for persons desiring to register their relationship as a domestic partnership [no reference to “adult” in section 18(1)]. The only limit is in section 16(4).

f. Property regime (S 19)

Section 19(4) is unclear.

g. Registered domestic partnership agreement (S 20)

This section empowers a court to set aside a registered domestic partnership agreement if it is satisfied that giving effect to it would cause “serious injustice”. It then stipulates, in a non-exhaustive fashion, factors that the court may have regard to in determining whether serious injustice would result from giving effect to the agreement. These factors are open-ended to the extent that they do not sufficiently guide a court in coming to this conclusion. Two examples are sections 20(3)(c) and (d): how does a court determine unfairness or unreasonableness; what distinguishes the two criteria (note “or”). As presently formulated, this provision can constitute a severe restriction on the partners’ freedom of contract unless clearer and restricted factors are given for a court to determine what makes an agreement “unfair” or “unreasonable” and what constitutes “serious injustice”.

h. Maintenance after death and intestate succession

Section 31 aims to include a surviving partner of a registered partnership into a reference to “spouse” in the Maintenance of Surviving Spouses Act 27 of 1990. Firstly, there is no definition of “spouse” in that Act, but a definition of “survivor” which refers to the “surviving spouse in a marriage dissolved by death”. Secondly, and more importantly, it is not possible to include a surviving partner of a registered partnership into the word “spouse” because that word refers specifically to a “spouse in a marriage”, and a registered partnership is not a marriage. Thirdly, even in the absence of that qualification, decisions of the Constitutional Court have interpreted the word “spouse” as referring to a partner in a marriage (it has a technical meaning already). Fourthly, section 2(1) of the Maintenance of Surviving Spouses Act makes reference to the provision of maintenance until “re-marriage”. A surviving partner of a registered partnership may not have been previously married and could therefore not remarry. The context and structure of the Act does not permit of the interpretation sought by section 31 of the Bill.
The third reason provided above applies with equal force to the interpretation of “spouse” in the Intestate Succession Act (section 32). Neither does the context and structure of this Act permit of the interpretation sought by section 32 of the Bill.

i. Section 30 of the Bill

Section 30(1) makes reference to “an agreement”. It is not clear whether it refers to a registered partnership agreement (section 20) or to a termination agreement (section 26), both of which may regulate the financial matters pertaining to the relationship.

j. Determination of existence of unregistered domestic partnerships

Part VI of the Bill provides benefits to a partner of an unregistered domestic partnership: (1) a right to claim maintenance after separation; (2) a right to claim maintenance after the death of one’s partner; (3) a right to inherit from the intestate estate of one’s partner; and (4) a right to benefit from a judicial division of property. Access to these benefits depends on a determination of the existence of an unregistered domestic partnership. According to section 45(1), read with section 38(2), the existence of an unregistered domestic partnership is determined by a court upon an application made within two years after the date on which the partnership is terminated through separation or death (emphasis added).
Firstly, in light of the nature of some of these benefits (or obligations), particularly those that operate after the death of one partner [(2) and (3) above], it is not appropriate that the existence of an unregistered partnership be an “after-the-fact” determination. Opportunistic individuals (note section 38(1): an application may be made by one partner only) whose partners become deceased may take advantage of this “after-the-fact” determination to burden their partners’ estates, even where their partners would not have intended for their relationships to attract such burdens. Numerous court applications (well-meaning, spurious and/or fraudulent) may be made by individuals aiming to prove that they were in relationships that are worthy of being termed “unregistered domestic partnerships.” These will burden the court system. The above-mentioned concerns are likely to lead to a lack of commitment to relationships, even those of a friendly nature.
Furthermore, the judicial determination of an unregistered domestic partnership will depend on the weight that a particular judge places on particular factors listed in section 38(2), as well as unmentioned ones [section 38(3)]. This constitutes a threat to the rule of law and to legal certainty.
Secondly, at which point does a judge conclude that an unregistered domestic partnership commenced and at which point does he/she conclude that it ended. At which point does he/she determine that it ended by separation or by death. Clarity on these factors is important in order to enable the law to legitimately place legal obligations on individuals in these relationships, particularly those extending to the estate of a partner in this relationship.

k. Protection for partners in unregistered partnerships

The absence of clear lines demarcating the commencement and existence of an unregistered domestic partnership makes partners in these relationships vulnerable to being “cheated on” by others who may be in secure relationships with third parties. Section 38(4) provides that a court “may not make an order under this Chapter regarding a relationship of a person who, at the time of that relationship [i.e. the unregistered partnership], was also in a civil marriage, civil partnership or registered domestic partnership with a third party.” The innocent unregistered partner who did not know that his other partner was, at the time of their relationship, also in a civil partnership or a civil marriage, will not benefit from a court order made in relation to her unregistered partnership with the latter because section 38(4) excludes a court’s jurisdiction over the unregistered partnership.
This vulnerability also manifests itself in the application of sections 40-43. The awarding of a maintenance order and the amount to be paid to a surviving partner in an unregistered partnership must take into consideration the existence of a surviving partner of the deceased in a customary marriage and, in other circumstances, a partner to another unregistered partnership.

l. The duty of support in unregistered partnerships

The obligation of spouses to maintain each other during the subsistence of a marriage derives from the duty of support, which arises automatically on the conclusion of a marriage. As a result of this automatic duty of support, a spouse can be held liable during the existence of a marriage if he/she fails to maintain his/her partner. The Maintenance of Surviving Spouses Act 27 of 1990 is a legislative intervention aimed at extending this duty of support beyond the death of one of the spouses; the obligation to maintain that exists during marriages passes to the estate of the first-dying spouse.
Section 39 provides that unregistered partners “are not liable to maintain one another and neither partner is entitled to claim maintenance from the other” except in terms of this Chapter. This is not surprising when one considers that the existence of an unregistered partnership, for purposes of attaching legal consequences, is an “after-the-fact” determination. There can therefore be no entitlement to maintenance before that determination. In light of the above, it is anomalous that sections 40 - 42 provide a partner to this relationship with the entitlement to claim maintenance after separation and after death. In the absence of such entitlement at the time when the partners were together, there is no basis for the posthumous creation of an entitlement after the relationship has ended – by separation or by death. Section 41 is an amended version of the Maintenance of Surviving Spouses Act in the context of an unregistered domestic partnership.

m. Customary spouses v unregistered partners: spousal benefits

It is surprising that the existence of a customary marriage between one of the partners of an unregistered partnership and a third party does not, unlike the existence of a civil marriage, civil partnership or a registered partnership, remove the jurisdiction of a court from making an order on the legal consequences of an unregistered partnership involving the former (as section 38(4) does). What is more disturbing is that in relation to spousal benefits conferred in this Chapter, spouses of customary marriages are placed on the same level as partners in an unregistered partnership, despite the fact that a customary marriage is of a higher status. This should not be so. Spouses in customary marriages ought to be given greater security than is given under this Bill.

n. Intestate succession: unregistered partners

Surviving partners in an unregistered partnership are given a right to inherit from the intestate estates of their deceased partners (section 43). As was argued under (l) above, in relation to the “after-the-fact” determination of the existence of an unregistered partnership, it is not appropriate to impose a burden on the estate of a deceased who during his lifetime would not have agreed to this. Secondly, and more importantly, the surviving partner of an unregistered partnership cannot be included under the reference to “spouse” in the Intestate Succession Act because in its textual and structural context, that word refers to a spouse in a marriage.


2. PROCEDURAL CONCERNS

a. The public hearing process and the requirements of public participation

The Marriage Alliance of South Africa is concerned about the limited opportunity afforded to the public to make a meaningful contribution to the law-making process in relation to this Bill. Most people, particularly ordinary citizens, only obtained information about hearings in their area within 24 hours of them taking place, the main advertisement being by word of mouth. There were very few local newspapers that advertised these hearings, and those that had adverts did not give specific venues or times. It was mainly interested non-governmental organisations that took the effort to phone parliamentary officials and the portfolio committee secretaries for confirmation of venues or times. As a result of this delayed awareness, people did not have the opportunity of accessing and studying the Bill before the time of the hearing. They therefore could not apply their minds on its contents and implications for their lives.
We are also concerned about the manner in which the public hearings process was conducted. Only one hearing was scheduled per province. The times, venues and locations of some hearings have been changed at the last minute. In Polokwane, for example, the hearing started at 11:30 when it was supposed to commence at 10:00, and the venue and time were summarily moved to the local township to commence that afternoon. The Pietermaritzburg hearing scheduled originally for Saturday 30th September was moved forward to Friday 29th September, and most interested parties in KwaZulu-Natal were not aware of the change.
We believe that the public hearing process does not comply with the duty of the National Assembly to “facilitate public involvement in the legislative and other processes of the Assembly and its committees” (section 59(1)(a) of Constitution). In Doctors for Life International v The Speaker of the National Assembly the Constitutional Court considered the meaning and scope of the duty to facilitate public participation in the law-making process. The majority held that there were at least two aspects of the duty to facilitate public involvement: (1) the duty to provide meaningful opportunities for public participation in the law-making process; (2) the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided.
The first aspect requires Parliament to take measures to equip the public to participate in the law-making process in a meaningful way (emphasis added); i.e. “provide notice of and information about the legislation under consideration and the opportunities for participation that are available” ; provide “access to information and the facilitation of learning and understanding in order to achieve meaningful involvement by ordinary citizens;” “create conditions that are conducive to the effective exercise of the right to participate in the law-making process”.
The second aspect requires Parliament to take measures to ensure that the public does participate in the law-making process (emphasis added); i.e. the opportunity to submit representations and submissions, written and/or oral; conducting its business in an open manner and holding its sittings and those of its committees in public.
Whether the legislature has taken steps to afford the public an opportunity to participate effectively in the law-making process (i.e. whether it has discharged its duty to facilitate public participation) depends on what was reasonable in light of all the circumstances. Factors relevant to determining reasonableness are:
· parliamentary rules adopted to facilitate public participation;
· the nature and importance of the legislation under consideration and the intensity of its impact on the public; and
· what Parliament considers to be appropriate and practicable in light of money and time constraints.

It is our view that the steps taken by Parliament to afford the public an opportunity to effectively participate in the process of passing this Bill does not comply with the requirement of reasonableness if consideration is given to the importance of the Bill and the impact which it will have on society in general, on the timeless institution of marriage; on every statute governing the legal consequences of marriage; and on religious and cultural beliefs and customs around marriage in South Africa. Parliament has not succeeded in this short time since the introduction of the Bill to equip the public to engage the contents of the Bill in any meaningful way, and has also failed to ensure adequate public participation given the importance of the Bill.
Adoption of this Bill will be ill considered, premature and unwise. In addition, it will be inconsistent with the court’s approach to the importance of public participation laid down in the Doctors for Life judgment.


b. Failure to refer Bill to National House of Traditional Leaders

To the extent that the Bill affects the status of customary marriages (an important and sensitive cultural institution), particularly in relation to the rights of surviving spouses of these marriages and the fact that there are traditional leaders who also act as marriage officers, this Bill ought to be referred to the National House of Traditional Leaders in terms of section 18(1) of the Traditional Leadership and Governance Framework Act 41 of 2003.

CONCLUDING REMARKS

It should be clear that the Bill in its present form is fatally flawed. It probably creates more legal and social problems than it solves. And, most importantly, it does not protect marriage as a union of a man and a woman. In our view this Bill is not the proper way to protect the institution of marriage; it does nothing to protect the family as a foundational element of society, nor does it effectively regulate other kinds of relationships.
Rather than proceeding with this Bill, we believe Parliament has the moral and legal responsibility to adopt a constitutional amendment in which a marriage is defined as a voluntary union of a man and a woman. That would effectively protect marriage against any statutory or judicial challenge.
We say that Parliament has the moral responsibility, because as the elected representatives of the people it is morally obliged to protect the integrity of marriage as a heterosexual institution. The majority of South Africans do not believe that same-sex relationships can ever be morally equivalent to marriage as has been accepted for generations. In our opinion the demand for same-sex marriage is a challenge to the strongest and most important foundational element of society, i.e. marriage and the family. The adoption of same-sex marriage will radically redefine marriage and family, will have far-reaching social consequences for generations to come, and will contribute to the social and moral confusion and instability we already experience in our society. We appeal to Parliament to conserve the existing moral consensus by the adoption of a constitutional amendment defining marriage as a heterosexual institution.
Parliament also has the legal responsibility to act on this matter. The constitutional authority to determine the content of the Constitution, also by way of amendment, is vested in Parliament. The function of the Constitutional Court is to interpret and apply the Constitution as handed down to it by Parliament. If the Constitutional Court’s interpretation of the Constitution has the effect of overturning foundational elements of society, such as marriage and the family, which are supported and valued by the large majority of South Africans, it is Parliament’s right and duty to amend the Constitution in order to prevent that from happening. By doing so, Parliament will not be challenging the authority of the Court; it will simply confirm the constitutional authority and role of both institutions. By amending it, Parliament will moreover confirm the authority of the Constitution as the supreme law of the Republic.
The obvious objection is that the time for a constitutional amendment has run out, and that all that Parliament has before it is the Civil Union Bill that has to be finalised before 1st December. Our reply is that Parliament is the highest legislative institution of the Republic with the constitutional authority to amend the Constitution whenever it deems necessary. No time constraint except those in the Constitution itself can stop Parliament from doing so. The question is not one of too little time, but of political will. If Parliament is prepared to listen to reason, and to the voice of the people, and it is prepared to provide the moral and constitutional leadership we request, it will take up this challenge on behalf of the people and amend the Constitution.

We pray that Parliament and this Committee will receive the wisdom and clarity required to take the proper action in this difficult matter. We pray that you will be prepared to take a moral stand in accordance with God’s will. We pray that God will protect our marriages and our nation.

God bless South Africa. Nkosi Sikelel’ iAfrika.

Co-Chairpersons of the Marriage Alliance of South Africa:
Cardinal Wilfrid Napier
(Chairman of the Southern Africa Bishops Conference)
Rev Moss Ntlha
(General Secretary of the Evangelical Alliance of South Africa)
Dr Michael Cassidy
(International Team Leader/African Enterprise)

For more Information:
General Administration/Communications:
Naomi Boshoff Cell 083 675 1001
E-mail: xformt@mweb.co.za Phone: +27 12 343 9488 Fax: +27 12 343 5280