The development of South African matrimonial law with specific reference to the need for and application of a domestic partnership rubric

[摘要] English: In strictly adhering to the concept of marriage inherited from the Western legaltradition, pre-1994 South African family law paid scant regard to marriages otherthan monogamous heterosexual civil marriages, while the common law provided noexpress legal recognition for unmarried life or domestic partnerships. The advent of thedemocratic constitutional era in 1994 however spawned a flurry of legal developmentthat broadened the notion of marriage by recognising customary marriages as well ascertain consequences of marriages concluded according to the tenets of a recognisedfaith such as Islam. Commencing with the watershed National Coalition for Gay andLesbian Equality cases,' the legal position in which same-sex life partners foundthemselves was also dramatically improved by a number of ad hoc judicialpronouncements which extended certain consequences of marriage to such partners onthe premise that they were at the time precluded from marrying one another. Theflipside of this premise-namely that heterosexual life partners have always beenpermitted to marry one another and thus cannot request an extension of matrimonial(property) law where they have exercised a choice not to marry (the so-called choiceargument)-was, however, to constitute the major justification for the judiciary's refusalto extend similar recognition to heterosexual life partners. The application of this line ofreasoning has implied that, within little more than a decade into the democraticconstitutional dispensation, same-sex life partners ostensibly enjoy better legalprotection and recognition of their relationships than their heterosexual counterparts.This state of affairs implies that the current legal position regarding unmarried lifepartners is inconsistent and fraught with anomalous legal consequences.Over and above the judicial developments, post-1994 legislation has also providedincreasing recognition for unmarried life partners. However, as was the case with thejudicial developments, the legislative developments were also merely piecemeal innature. The upshot of this state of affairs is that interpersonal relationships in SouthAfrica are governed by a patchwork of laws that did not [and still do not] express acoherent set of family law rules.While the validation of same-sex marriages by way of the promulgation of the CivilUnion Act 17 of 2006 was a salutary development from a human rights perspective, thisdevelopment has created difficulties of its own. To begin with, the validation of samesexmarriage implies, strictu sensu, that the choice argument applies equally to samesexcouples who elect not to marry one another. This entails that such couples couldpotentially be deprived of the consortium omnis vitae that the Courts have in principlefound to exist between them and that they may no longer be able to rely on thepiecemeal judicial extensions granted by the Courts prior to 30 November 2006 (the dayon which same-sex marriage became permissible). The legal position in this regardhowever remains unclear. In addition, the validation of same-sex marriage has beenaccomplished by way of legislation that not only requires same-sex couples to marryone another in terms of separate legislation but that also further overcomplicates thelegal landscape by providing for civil unions that can take the form of either marriagesor civil partnerships. As such, no legislation has as yet been enacted that deals with theposition of life or domestic partners per se.In January 2008 a draft Domestic Partnerships Bill, 2008 saw the light of day. Usingthis Bill as a prototype, this study attempts-by applying a domestic partnership rubricthat requires the modification of the Bill and its calibration with attendant legislation-toiron out the inconsistencies and anomalies alluded to above by providing effectivedomestic partnership legislation. In order to achieve this, an in-depth analysis of caselaw, legislation and common law is conducted with a view to establishing certainfundamental principles that ought not only to feature in the domestic partnershipslegislation itself, but which are also required in order to facilitate the Bill's alignment withapplicable legislation. In the light of the modified Bill, the study concludes with anevaluation of the case for retaining the Civil Union Act 17 of 2006. In the final analysis,the conclusion is reached that the enactment of the Domestic Partnerships Bill asdeveloped in accordance with the rubric, coupled with the repeal of the Civil Union Act17 of 2006, will provide a more consistent, coherent and less complex legal frameworkwithin which interpersonal relationships in South Africa can be regulated.

[发布机构] University of the Free State