The Constitutional Court in 2005 found the exclusion of same-sex marriage in the Marriage Act to be unconstitutional and directed Parliament to rectify this issue in 12 months. Instead of amending the Marriage Act to include same-sex marriage, Parliament instead created the Civil Union Act.
There was prevailing political pressure to oppose same-sex marriage, leading to this judgment.
While this provided a means for same-sex couples to solemnise their relationship, there are still differences between a marriage and a civil union which provide challenges to same-sex couples.
For example, a civil union requires the two people to be at least 18, without exception. A heterosexual marriage can be entered into by minors with permission by parents/legal guardians or a commissioner of child welfare. If the boy is under 18 and/or girl under 15 then additionally the written permission by the Minister of Home Affairs is mandatory.
There is no explanation for this delay in obtaining a civil union, or failure to include options for the same such permissions to be obtained. The Marriage Act wasn’t amended simultaneously with the institution of the Civil Union Act, so it isn’t about updating the social mores in that regard.
Marriage officers can also object to conclude a civil union on grounds of conscience, religion and belief.
This has created immense havoc for those same-sex couples in various areas throughout South Africa who cannot find a marriage officer near them who will perform the ceremony.
Civil unions are also given a distinct character from marriages in that heterosexual couples can elect to enter into a civil union instead of a marriage, though this may also be in place to avoid further allegations of discrimination based on sexual orientation by the exclusion of them.
Aside from these types of distinctions, civil unions do afford same-sex couples a means of solemnising their relationship whereby they are afforded the same types of benefits as a marriage.
Whilst South Africa has a strong Constitution to rely upon, and does make progressive steps forward as a result, it must be acknowledged that the politics of the time still plays an unfortunate role.
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Author – Murray Taylor
