As I am pondering this article I am immediately aware of the fact that it might spark a debate that I may not even be capable of chairing. However I have been curious enough to pluck the courage to write this article and raise some pertinent questions that have occurred in my mind.
Recently a number of developments have taken place internationally as well as within our shores. In South Africa for instance we have, for a long time, had the Marriage Act, Act 25 of 1961 (“the Act”) as the sole regulator of relations between parties who are involved in a domestic relationship of some sort. While many people have rushed into churches to wed, similarly a statistical number of people have rushed to Courts to terminate marriages. With the advent of the Constitution of the Republic of South Africa (1996), as well as a number of pieces of legislation flowing from Constitutional Court decisions, it has become clear that marriage as defined in the Marriage Act is no longer an acceptable solution and/or alternatively the only route that parties who seek to be in a relationship of some sort can travel. People have approached the Constitutional Court to enforce their rights regarding equality before the law in particular people who are in involved in other forms of sexual relationships as opposed to the traditional forms as we have known as envisaged in the Marriage Act. As a result of these developments a piece of legislation known as the Civil Union Act, Act no: 17 of 2006 came into force following a number of constitutional court decisions that sought to grant equal rights to all persons regardless of their sexual preferences.
As I am writing this article I have before the Domestic Partnerships Bill (“the Bill”) in draft form dated 14 January 2008 which is yet another piece of legislation which also seeks to regulate domestic relationships between parties as enshrined in Section 9(1) of the Constitution of the Republic of South Africa.
It is this very bill that has persuaded me to write this article and ask the question: is marriage, from the perspective of the Marriage Act, still worth it? I have had the opportunity of going through (almost) all the provisions and/or sections of this bill.
The objectives of the bill are to be found in Chapter 2, Section 2 of the said bill and read as follows:
a) “ The objectives of this Act are to ensure the rights of equality and dignity of the partners in domestic partnerships and to reform family law to comply with the applicable provisions of the bill of rights through the recognition of legal status of domestic partners;
b) Regulation of the rights and obligations of domestic partners;
c) Protection of the interest of both domestic partners and interested parties on the termination of domestic partnerships; and
d) Final determination of the financial relationships between domestic partners and interested parties when domestic partnerships terminate.”
This section alone seems to provide for all the situations that are also provided for in the Marriage Act, Recognition of Customary Marriages Act, Act 120 of 1998 as well as the provisions that are made in the Civilian Union Act, Act No. 17 of 2006.
While I can I may point out that the only difference between the bill and the three aforementioned pieces of legislation (the Marriage Act, Recognition of Customary Marriages Act and the Civil Union Act) is that it seems to cater for those people who either cannot contract in terms of the Marriage Act or the Civil Union Act and/or the Recognition of Customary Marriages Act.
In terms of the bill, parties to a domestic partnership need to register the partnership to have its full effect.
In essence, the bill gives parties almost the same protection as does the Marriage Act. The bill however has no procedure for the conclusion of a domestic partnership as opposed to the long solemnisation process prescribed in the Recognition of Customary Marriages Act.
In terms of section 7 (1) of the bill there is no general community of property between partners in a registered domestic partnership. In effect this section seems to point towards an accrual system of some sort as any party alleging a claim to ownership of the joint property and/or alternatively property belonging to the estate of the other can approach the Courts in terms of section 22 of the bill.
Registration of a Domestic Partnership
In terms of section 26 of the bill it would appear that non-registration of a domestic partnership is not visited by any consequences insofar as division of property after termination of unregistered domestic partnership is concerned.
A corresponding provision is to be found in section 4(9) of the Recognition of Customary Marriages Act, Act 120 of 1998, which provides that failure to register a customary marriage does not affect the validity of that marriage.
Essentially a domestic partnership is a marriage without necessarily being a marriage. If this is a correct interpretation, one may ask the question - of what value is marriage then? Have all these developments rendered marriage obsolete?