Mike Atkins Submission

Michael Atkins
8 Weymouth Ave
Westridge
Durban
4091
031-261 8000
6 October, 2006

Ms Dineo Martin
Home Affairs Portfolio Committee
Parliament of South Africa
CIVIL UNIONS BILL: SUBMISSION
This submission arises from a detailed scrutiny of the text of the Bill, and outlines certain observations, questions and critiques relating to the logical structure of the Bill.
I presume that defects that may be outlined here arise from oversights, and I submit and request that, should the Bill be presented to Parliament for debate and decision, then any such of these observations that are valid should be corrected.
Domestic Partnerships
· There does not appear to be any mention of the age of persons that may conduct a domestic partnership. Presumably it is not the intention of Parliament to allow the registration of domestic partnerships involving persons that have not reached the age of majority.
· S 16(4) of the Bill seems to prohibit the registration of domestic partnerships by persons that are too closely “related” (the term, “consanguinity” relates to having a common ancestor). In making reference to, “Persons who would be prohibited by law from concluding a marriage on the basis of consanguinity”, it is not clear to me whether any such restrictions would, strictly speaking, extend to same-sex couples (would a reading of the existing texts linguistically or semantically be broad enough to include same-sex siblings, for example?).

It is therefore not clear to me whether the Bill prohibits the registration of domestic partnerships between siblings or other close relatives of the same sex.

I am under the impression that an adopted child may not legally marry his or her adoptive siblings. However, the current wording of the Bill would allow the registration of domestic partnerships between adoptive siblings. It is not clear whether this is intended.
· There is no provision for registration officers to decline, on grounds of conscience, to register domestic partnerships between couples of the same sex. If such provision exists either constitutionally, or in this Bill for marriage officers dealing with civil partnerships, then it would seem impossible to deny this ‘right” to registration officers. However, if the right is mentioned explicitly for marriage officers, and is not mentioned for registration officers, then the Bill may be interpreted as meaning that registration officers indeed were compelled to register same-sex domestic partnerships. Indeed, there seems to be no provision for any “officer or employee in the public service or the diplomatic or consular service” to decline designation as a registration officer (on grounds that domestic partnerships may be viewed as the partners “living in sin” by virtue of not being married).
· s 27(1) refers to, “minor children from the registered domestic partnership” (emphasis mine), while s 1 refers to a, “child of a domestic partnership”. Do these terms have the same meaning, or does s 27(1) refer to children born within the duration of the registered domestic partnership?

This distinction would have an important bearing on which domestic partnerships would require the securing of a court order for their termination.

Civil Partnerships
· While nobody may register a domestic partnership if that person is currently married, "civilly partnered" or "domestically partnered", the restriction on entering a civil partnership is that the person must not be married or in an existing civil partnership. Technically at least, this appears to allow domestic partners also to register a civil partnership. Given that the reverse is not allowed, this must clearly not be the intention of the Bill.
· While it is so that at least one of the persons registering a domestic partnership must be a South African citizen, the same is not said of prospective civil partners. Presumably the same rule would apply to civil partners as would to couples getting married.
· To what extent would the equivalent of civil partnerships (in whatever form) entered into in other countries be recognized in South African law? It would also seem that unless another country specifically recognized South African civil partnerships, then the civil partners would not have any legal recognition in other countries.
· The reason for allowing civil partners to refer to their union as a marriage during the solemnization (s 11) is not clear.

Marriages
· It appears that there is no prohibition on persons that have registered a domestic partnership from entering into marriages with other persons. It is true that they may not first marry and then register a domestic partnership, but the wording of the Bill does not prevent this from happening the other way round. Clearly this is untenable.
· If a couple, on the other hand, had registered a domestic partnership, what would the procedure be for the same couple to enter into a marriage or a civil partnership?

Marriage Officers
· Section 6 expresses the constitutional right of marriage officers to decline to solemnise civil partnerships. However, in requiring that, “such marriage officer has informed the Minister in writing that he or she objects on grounds of conscience to solemnising civil partnerships in terms of this Chapter” (s 6(1)), it is not clear whether a marriage officer must already have informed the Minister in writing at the time of being confronted with a requirement to solemnize a civil partnership. Or, does this section allow the marriage officer to make such a declaration to the Minister after declining to solemnize a civil partnership. Presumably, a marriage officer that may have conducted such ceremonies will be permitted, at a later date, to submit a written objection to solemnising civil partnerships.