The Civil Union Act, 2006 (Act No. 17 of 2006) is an act of the

Parliament In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...

South Africa South Africa, officially the Republic of South Africa (RSA), is the southernmost country in Africa. It is bounded to the south by of coastline that stretch along the South Atlantic and Indian Oceans; to the north by the neighbouring coun ...

which legalised

same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...

. It allows two people, regardless of gender, to form either a marriage or a

civil partnership A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...

. The act was enacted as a consequence of the judgment of the Constitutional Court in the case of ''

Minister of Home Affairs v Fourie ''Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others'', 005ZACC 19, is a landmark decision of the Constitutional Court of South Africa in which the court ...

'', which ruled that it was unconstitutional for the state to provide the benefits of marriage to opposite-sex couples while denying them to same-sex couples.

Legislative history

The Constitutional Court's judgment set a deadline of 1 December 2006 for Parliament to rectify the situation. If Parliament missed the deadline, words would be "read in" to the Marriage Act to allow same-sex marriages to take place. On 24 August 2006, the

Cabinet Cabinet or The Cabinet may refer to: Furniture * Cabinetry, a box-shaped piece of furniture with doors and/or drawers * Display cabinet, a piece of furniture with one or more transparent glass sheets or transparent polycarbonate sheets * Filin ...

approved the Civil Union Bill for submission to Parliament. It was introduced in the

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by the Minister of Home Affairs on 12 September. The original bill only allowed for civil partnerships between same-sex partners, and also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex. The bill was amended by the Portfolio Committee on Home Affairs to allow both marriages and civil partnerships, and to open them to opposite-sex as well as same-sex couples. The committee also removed the provisions dealing with unregistered domestic partnerships. The final vote in the National Assembly was held on 14 November. The ruling

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called a

three line whip A whip is an official of a political party whose task is to ensure party discipline in a legislature. This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology o ...

, requiring its MPs to vote for the bill. Most opposition parties voted against it, while the Democratic Alliance allowed its MPs a

conscience vote A conscience vote or free vote is a type of vote in a legislative body where legislators are allowed to vote according to their own personal conscience rather than according to an official line set down by their political party. In a parliamentary ...

. The bill passed by 229 votes to 41 with two abstentions. The

National Council of Provinces The National Council of Provinces (NCOP) is the upper house of the Parliament of South Africa under the (post-apartheid) constitution which came into full effect in 1997. It replaced the former Senate, but is very similar to that body, and to ...

passed it on 28 November by 36 votes to 11 with one abstention. It was signed on 29 November by Deputy President

Phumzile Mlambo-Ngcuka Phumzile Mlambo-Ngcuka (; born 3 November 1955), South African Government Information. is a South African politician and former United Nations official, who served as the Executive Director of UN Women with the rank of Under-Secretary-General o ...

(acting for President Thabo Mbeki) and came into force the following day.

Provisions

A civil union may be contracted under the act by a same-sex or opposite-sex couple, and they may choose to form it either as a marriage or as a

. Whichever name is chosen, the legal consequences of a civil union are the same as those of a marriage under the Marriage Act. Any reference to marriage in any law is deemed to include a civil union, and any reference to a husband, wife or spouse is deemed to include a spouse or partner in a civil union. A person may not contract a marriage or civil partnership if he or she is already married (or civilly partnered) under the Civil Union Act, the Marriage Act, or the Recognition of Customary Marriages Act. Both partners must be 18 or older and mentally competent. The same prohibited degrees of consanguinuity and affinity apply as would apply under the Marriage Act. A marriage or civil partnership must be solemnized by a marriage officer in the presence of the partners and two witnesses. The solemnization may occur in a public office, a private house, or in premises used for the purpose by the marriage officer. The marriage officer asks each partner: and when each partner has said "yes", the marriage officer solemnizes the marriage by saying: Secular marriage officers under the Marriage Act

magistrates The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judic ...

and

Home Affairs An interior ministry (sometimes called a ministry of internal affairs or ministry of home affairs) is a government department that is responsible for internal affairs. Lists of current ministries of internal affairs Named "ministry" * Ministry ...

officialsare automatically marriage officers for the purposes of the Civil Union Act. Marriage officers who are ministers of religion are not marriage officers for the purposes of the Civil Union Act unless both they and their denomination apply to be designated as such. Unlike the Marriage Act, the Civil Union Act does not place any restriction on the religious denominations of legally designated marriage officers. Marriage officers have the same powers, responsibilities and duties under the Civil Union Act as they do under the Marriage Act.

Amendment

The Act originally allowed secular marriage officers to be exempted from performing same-sex marriages on the grounds of conscience, religion or belief. This provision was repealed in October 2020 by the Civil Union Amendment Act, 2020, with exemptions expiring after a two-year transition period. During the transition period every office of the Department of Home Affairs is required to have an official available to perform same-sex marriages.

References

External links

Official text of the Act

National Assembly debate on the Civil Union Bill

National Council of Provinces debate on the Civil Union Bill
{{LGBT in South Africa South African legislation 2006 in LGBT history 2006 in South African law LGBT law in South Africa Same-sex marriage in South Africa South African family law Same-sex union legislation LGBT marriage law