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There has been confusion about the Civil Union Bill now Act in South Africa that has permitted marriage (as an option) for same-sex couples. It seems after reading these several papers that there are now three Acts in place. Two Acts from the past are the Customary Marriages Act and the Marriage Act. The legislation that has just been passed into law is the Civil Union Act. Of course, the two past Acts permitted marriage between opposite-sex couples only. The Civil Union Act creates two additional joinings the choice of which is up to the same-sex couple. They have a choice to either use the civil union to enter into a marriage or a civil partnership. It appears that the ultimate conclusion of the joining is civil union with a new definition depending upon the wishes of the “partners.” This choice was placed in the final Bill & Act due to the initial bill coming up short of marriage; thereby, being in conflict with the constitutional requirement. Reading these documents will show the manipulations of wording to satisfy both same-sex couples and those opposed to Full Equal Rights.
Civil Union Act published in the Government Gazette having the effect of declaring it law - http://www.info.gov.za/gazette/acts/2006/a17-06.pdf excerpts Marriage officer not compelled to solemnise civil union 6. A marriage officer, other than a marriage officer referred to in section 5. May in writing inform the Minister that he or she objects on the ground of conscience, religion and belief to solemnising a civil union between persons of the same sex. whereupon that marriage officer shall not he compelled to solemnise such civil union. Requirements for solemnisation and registration of civil union 8. (1) A person may only be a spouse or partner in one marriage or civil partnership. (2) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act. (3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union. (4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated. (5) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in subsection (4). (6) A civil union may only be registered by prospective civil union partners who would, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act. Formula for solemnisation of marriage or civil partnership 11. (1) A marriage officer must inquire from the parties appearing before him or her whether their civil union should be known as a marriage or a civil partnership and must thereupon proceed by solemnising the civil union in accordance with the provisions of this section. Registration of civil union 12. (1) The prospective civil union partners must individually and in writing declare their willingness to enter into the civil union with one another by signing the prescribed. (2) The marriage officer and the two witnesses must sign the prescribed document to certify that the declaration made in terms of section 11(2) was made in their presence. (3) The marriage officer must issue the partners to the civil union with a registration certificate stating that they have under this Act, entered into a marriage or a civil partnership depending on the decision made by the parties in terms of section 11 (1). (4) The certificate contemplated in subsection (3) is prima facie proof that a valid civil union exists between the partners referred to in the certificate.
Civil Union Bill - http://www.info.gov.za/gazette/bills/2006/b26b-06.pdf
Draft Civil Union Bill - http://www.info.gov.za/gazette/bills/2006/29237a.pdf
Statement by Deputy President:
Statements by Home Affairs Minister:
excerpt “The second guiding principle states that "Parliament be sensitive to the need to avoid a remedy that on the face of it would provide equal protection, but would do so in a manner that is calculated to reproduce new forms of marginalisation". Whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples both in terms of intangibles as well as tangibles involved. It is our view that the Civil Union Bill presently before this House indeed satisfies the order of the court. The objects of the Civil Union Bill are to provide for the public solemnisation and registration of civil unions, by way of either a marriage or civil partnership and to provide for the legal consequences thereof. This Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a civil union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of State and church, as section 15(3) of the Constitution calls for sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same-sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion. In order to give effect to the Constitutional Court ruling, same sex couples must be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite sex couples. This Bill allows for both same sex and opposite sex couples to choose the option of having their union solemnised and registered as a civil partnership by a state employed marriage officer.”
excerpt “The Civil Union Bill presently before this House indeed provides such a remedy. The objects of the Civil Union Bill are to provide for the public solemnisation and registration of civil unions, by way of either a marriage or civil partnership and to provide for the legal consequences thereof. As noted in the memorandum on the objects of the Bill, this Bill makes provision for opposite and same sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of State and church as section 15(3) of the Constitution is indicative of sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion. In order to give effect to the Constitutional Court ruling, same sex couples have to be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite sex couples.”
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