In November 2006, following a long line of court cases recognising certain rights and responsibilities in same-sex partnerships, the Civil Union Act 17 of 2006 came into effect. This law provides for the legal recognition of marriages and civil partnerships, collectively referred to as civil unions, between two persons regardless of their sexual orientation or gender identity. The Civil Union Act is in line with the Constitutional Court judgment in the case of Lesbian and Gay Equality Project and Eighteen others v Minister of Home Affairs and others which found that the common law definition of marriage in the Marriage Act was inconsistent with the Constitution and was invalid to the extent that it did not allow same-sex couples to enjoy the same status, benefits and responsibilities given to heterosexual couples.

REQUIREMENTS FOR REGISTERING A CIVIL UNION

The Civil Union Act specifies the following requirements for registering a civil union.

• Anyone who is 18 years or older may enter into a civil union (in terms of the Civil Union Act) and can choose to register it as a marriage or civil partnership. When it has been registered a certificate will be issued with the details of the union.
• A person may only be a spouse or partner in one marriage or civil partnership.
• A person who enters into a civil union is not allowed to also enter into a marriage under the Marriage Act or the Recognition of Customary Marriages Act 120 of 1998. In the same way, a person who is already married under the Marriage Act or the Recognition of Customary Marriages Act may not register a civil union in terms of the Civil Union Act.
• If a person wants to enter a civil union and he or she has previously been married under either the Marriage Act, Recognition of Customary Marriages Act, or registered as a spouse in terms of the Civil Union Act, the person must present a certified copy of the divorce order or death certificate of the former spouse or partner as proof that the previous marriage or civil union is no longer valid.
• A civil union may only be registered by two civil union partners who would, apart from the fact that they are the same sex, not be prohibited by law from marrying each other under the Marriage Act or Recognition of Customary Marriages Act.
• A valid South African identity document is necessary for the registration of a civil union.
• All the legal and material benefits and responsibilities that flow from marriages entered under the Marriage Act will also apply to marriages or civil partnerships registered in terms of the Civil Union Act.
• Any civil marriage officer, for example, a Magistrate, selected government officials and/or special justice of the peace, recognised by the Marriage Act are automatically entitled to conduct marriages and civil partnerships under the Civil Union Act. A minister of religion and the religious organisation must first get authorisation from the Minister of Home Affairs to register a civil union. (See Problem 2: Entering into a civil union)