Same-sex marriages are becoming more common in South African law and can be registered in terms of our legislature. Also known as a civil union, the Act which deals with same-sex marriages is the Civil Union Act 17 of 2006.
Strangely enough the Civil Union Act does not deal with what happens when the same-sex marriage has broken down irretrievably and the parties want to get divorced. When a male/female marriage comes to an end, there is legislature which deals with the proprietary consequences of the divorce. This legislature is governed by the Divorce Act 70 of 1979.
England has similar legislature to our Civil Union Act namely the English Civil Partnership Act 33 of 2004. This Act also deals with same-sex marriages. In a recent court case in South African law, namely that of AS v CS 2011 (2) SA 360 (WCC), two South Africans had got married in England in terms of the English Civil Partnership Act. They had both been in England for work purposes.
In the above case the marriage broke down irretrievably after the parties had experienced matrimonial difficulties. The Plaintiff on his court papers made the averment that the marriage was in community of property. A settlement agreement was entered into between the parties, and a divorce order was granted incorporating the terms of the settlement agreement. The divorce was uncontested.
In the above case the judge was of the view that a same-sex marriage in terms of the Civil Union Act can also be dissolved under Section 3 of the Divorce Act. The court found that maintenance can also be sought by either of the parties in terms of Section 7 (2) of the Divorce Act. The Rule 43 application in terms of the court can also be applied for by either of the parties as with male/female marriages. The Rule 43 application is an application which may be brought by either party before the divorce is finalized, sorting out maintenance and a contribution towards legal fees.
The court found that a same-sex marriage or same-sex partnership concluded under the Civil Union Act was capable of dissolution under Section 3 of the Divorce Act. A same-sex union concluded under the act was fully recognizable as marriage, whether the parties chose to call it a marriage or a civil partnership, and such a union was capable of dissolution, under the Divorce Act.
In the above case the civil partnership concluded under English Law was accepted in South Africa to be a valid partnership. The court found that it was a valid civil partnership because it did not offend South African public policy. The aim of the Divorce Act is to deal with the dissolution of marriages. In my opinion the above decision was the correct one, as there is no reason to exclude unions entered into outside South Africa. The above case is very interesting and once again shows how same-sex marriages are given more and more recognition in South Africa.
Gay Divorces: Rehabilitative maintenance
Rule 43 Application in South Africa