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: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...

South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...

which legalised

same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal Legal sex and gender, sex. marriage between same-sex couples is legally performed and recognized in 38 countries, with a total population of 1.5 ...

. 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, primarily created to provide legal recognition for same-sex couples. Civil unions grant some or all of the rights of marriage, with ch ...

. The act was enacted as a consequence of the judgment of the

Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ru ...

in the case of '' Minister of Home Affairs v Fourie'', 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 Marriage Act may refer to a number of pieces of legislation: Australia * Marriage Act 1961, Australia's law that governs legal marriage. * Marriage Amendment (Definition and Religious Freedoms) Act 2017 Canada * '' Civil Marriage Act'' passed ...

to allow same-sex marriages to take place. On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament. It was introduced in the

National Assembly In politics, a national assembly is either a unicameral legislature, the lower house of a bicameral legislature, or both houses of a bicameral legislature together. In the English language it generally means "an assembly composed of the repr ...

by the

Minister of Home Affairs An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...

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 (that members of the party vote according to the party platform rather than their constituents, individual conscience or donors) in a legislature. Whips ...

, 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 parliamenta ...

. 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 of South Africa, constitution which came into full effect in 1997. It replaced the former Senate of South Africa# ...

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 (acting for President

Thabo Mbeki Thabo Mvuyelwa Mbeki (; born 18 June 1942) is a South African politician who served as the 2nd democratic president of South Africa from 14 June 1999 to 24 September 2008, when he resigned at the request of his party, the African National Cong ...

) 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

. 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 Consanguinity (from Latin '' consanguinitas'' 'blood relationship') is the characteristic of having a kinship with a relative who is descended from a common ancestor. Many jurisdictions have laws prohibiting people who are closely related by blo ...

and

affinity Affinity may refer to: Commerce, finance and law * Affinity (law), kinship by marriage * Affinity analysis, a market research and business management technique * Affinity Credit Union, a Saskatchewan-based credit union * Affinity Equity Pa ...

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 judici ...

and

Home Affairs An interior ministry or ministry of the interior (also called ministry of home affairs or ministry of internal affairs) is a Ministry (government department), government department that is responsible for domestic policy, public security and law e ...

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
* * {{LGBT in South Africa South African legislation 2006 in LGBTQ history 2006 in South African law LGBTQ law in South Africa Same-sex marriage in South Africa South African family law Same-sex union legislation LGBTQ marriage law Marriage law in South Africa