The South African Civil Union Act 2006: progressive legislation with regressive implications?

Abstract

A ground-breaking judgment handed down by the Constitutional Court on 1 December 2005 gave parliament 1 year within which to promulgate legislation that facilitated same-sex marriage in South Africa. In response, the Civil Union Act 17 of 2006 came into operation on 30 November 2006. This Act provides for the solemnization and registration of a civil union in the form of either a marriage or a civil partnership. While it can be accepted that the Act allows persons of the same sex to conclude a civil union, the position of heterosexual persons appears to be less certain – a situation which requires urgent attention due to the lack of legal protection currently afforded to cohabitants who have not formalized their relationships. This problem is exacerbated by a number of anomalies created by judicial intervention (prior to the promulgation of the Act), in terms of which certain benefits of civil marriages were extended to same-sex unmarried couples while their heterosexual counterparts were left out in the cold. After elucidating the interpretative difficulties caused by the Act, attempting to shed some light on a number of the anomalies alluded to above and briefly analysing the comparable marriage and marriage-like relationships encountered in Dutch law, this contribution concludes that the Civil Union Act is a badly-drafted piece of legislation that has only served to further fragment an already disjointed legal landscape.