With the dawn of democracy in 1994 and the right to equality being firmly entrenched in our Constitution, the prohibition against inter-racial marriages became a thing of the past. However, the vestiges of apartheid remained in the definition of marriage in the Marriages Act which precluded people of the same sexual orientation to marry each other. As a result of an application made to court in 2005 by Marie Fourie and Cecelia Bonthuys to be allowed to marry each other, the Constitutional court gave our legislature one year within which to bring its marriage laws in line with the Constitution.
In November 2006, South Africa made world headlines when it became the fifth country in the world (and the first in Africa and remains to date the only country in Africa) to legalise marriages between two people of the same sex under the Civil Union Act. Instead of amending the Marriages Act, the Legislature decided to pass a separate law giving equal rights to same sex couples as heterosexual couples. In essence, the matrimonial and patrimonial consequences of a civil union is the same as a community of property marriage unless the couple enter into an ante-nuptial contract before a marriage certificate is issued.
Life partnership and civil partnership agreements can also be entered into between same-sex couples.
Likewise, the partners can jointly adopt a child or a partner may adopt a child of the other partner. In the event that a female same-sex life partnership ends and one of the partners gave birth to a child as a result of artificial insemination, the partners may remain co-holders of parental rights and responsibilities in respect of such a child, providing that it is in the child’s best interests.
The termination of a civil union marriage also follows the normal divorce procedures.
