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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.

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