Like any other heterosexual relationship, there is no law regulating same-sex relationships. Legal consequences only become applicable when:
- a same-sex relationship becomes more permanent and develops into a same-sex life partnership, not formalised through the Civil Union Act;
- the parties in a same-sex relationship get married in terms of the provisions of the Civil Union Act; or
- the parties in a same-sex relationship formalise the relationship as one of a civil partnership in terms of the provisions of the Civil Union Act.
When a same-sex couple marries or registers their union in terms of the Civil Union Act, the same principles will apply to the dissolution of their union as if they were married under the Marriage Act and divorced.
When a same-sex couple does not marry or register their union in terms of the Civil Union Act, the same principles will apply to the termination of their relationship as if they were living in cohabitation.
There is currently no legislation that sets out requirements that have to be met by partners in a same-sex relationship in order for their relationship to qualify as a same-sex life partnership.
The following factors will be considered when assessing whether a same-sex life partnership exists or not:
- the degree of permanence and stability of the relationship;
- whether the relationship is acknowledged by the couple’s friends, family and/or acquaintances;
- the exclusive nature of the relationship;
- the period of cohabitation;
- the couple’s commitment to share a household, and each partner’s role in the maintenance and management of the shared household;
- the couple’s financial and emotional support towards each other, and whether the partners have assumed a duty to support each other;
- if the couple has jointly purchased immovable property, which is registered in both their names;
- whether the couple has joint insurances;
- whether the partners are reciprocal beneficiaries in each others’ wills;
- any conduct or act that expresses and/or confirm the intention of the parties to be in a permanent life partnership; and
- any written agreement the couple has entered into expressing their intention to be in a permanent life partnership.
In order to determine the legal consequences that may be attributed to a same-sex life partnership, it is important to note that there is a distinction between a same-sex life partnership where the partners have assumed a responsibility to maintain each other reciprocally and one where the partners have not assumed such a responsibility.
In the absence of an agreement that the partners assume a responsibility to maintain each other, a court will look at the facts of each case to determine whether such a responsibility has been assumed.
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Author – Jessica Gooding