The Legal Position of Partners in Same Sex Relationships in South Africa

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Legal aspects pertaining to same-sex relationships

South Africa has been at the forefront of recognizing and protecting the rights of the LGBTQ+ community. In 2006, the country became the fifth in the world and the first in Africa to legalize same-sex marriage through the enactment of the Civil Union Act (Act 17 of 2006). This landmark legislation allows both opposite-sex and same-sex couples to enter into civil marriages, religious marriages, and civil partnerships. The South African court has also declared that denying same-sex couples the right to marry is unconstitutional and discriminatory, ensuring that all couples, regardless of gender, are treated equally under the law.

The Legalization of Same-Sex Marriage

The legalization of same-sex marriage in South Africa was a monumental step towards equality. The Civil Union Act (Act 17 of 2006) paved the way for same-sex couples to have their relationships legally recognized and protected. This act allows individuals to marry under different conditions, including same-sex civil marriages, opposite-sex civil marriages, religious marriages, and civil partnerships. The amendment to the Marriage Act of 1961 ensures that all couples, regardless of their gender, can enjoy the same rights and benefits of marriage.

Amendment in Union Act (Act 17 of 2006)

With the amendment of the Civil Union Act in 2020, marriage officers or magistrates are no longer allowed to refuse to officiate same-sex marriages based on their personal beliefs. The Civil Union Amendment Act No. 8 of 2020 prohibits marriage officers from withholding their services due to conscience, religion, or faith. As long as the marriage meets all legal requirements, officials are obligated to solemnize the marriage, treating it like any other wedding. This amendment aims to eliminate discrimination and ensure that same-sex couples have access to the same rights as heterosexual couples.

Solemnization Rules

To ensure the solemnization of same-sex marriages in South Africa, certain rules must be followed:

• The marriage must be solemnized in the presence of an authorized marriage officer.
• Government officials, such as magistrates and Home Affairs civil servants appointed under the Marriage Act, can solemnize the marriage under the Civil Union Amendment Act No. 8 of 2020.
• The Home Affairs Minister is responsible for ensuring that a marriage officer is available to solemnize a civil union at every office.

The Department of Home Affairs has a transitional period of 24 months to train marriage officials who previously held exceptions. These rules aim to prevent discrimination and uphold the rights of same-sex couples to marry.

Like any other heterosexual relationship, there is no law regulating same-sex relationships. Legal consequences only become applicable when:

1. a same-sex relationship becomes more permanent and develops into a same-sex life partnership, not formalised through the Civil Union Act;
2. the parties in a same-sex relationship get married in terms of the provisions of the Civil Union Act; or
3. the parties in a same-sex relationship formalise the relationship as one of a civil partnership in terms of the provisions of the Civil Union Act.

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When a same-sex couple marries or registers their union in terms of the Civil Union Act, the same principles will apply to the dissolution of their union as if they were married under the Marriage Act and divorced.

Adoption Rules

In line with the recognition of same-sex marriages, South Africa has also extended equal rights in adoption. The Children's Act 2005 does not prohibit gay or lesbian couples from adopting. Same-sex couples can adopt children jointly, just like opposite-sex couples. This includes married couples, partners in a permanent domestic life-partnership, and other individuals sharing a common household and forming a permanent family unit. The adoption rules ensure that same-sex couples have the same opportunities to build families as heterosexual couples.

The Future Ahead

South Africa's court and government continue to take proactive steps to ensure equality for same-sex couples in all aspects of family life. This includes marriage proceedings, adoption, and other family rights. The country is committed to creating a legal framework that promotes inclusivity and sets an example for other nations. Although there may still be hurdles and challenges ahead, South Africa is determined to overcome them and create a society that respects and embraces diversity.

Same-sex life partnerships (non married couples)

There is currently no legislation that sets out requirements that have to be met by partners in a same-sex relationship in order for their relationship to qualify as a same-sex life partnership.

The following factors will be considered when assessing whether a same-sex life partnership exists or not:

• the degree of permanence and stability of the relationship;
• whether the relationship is acknowledged by the couple’s friends, family and/or acquaintances;
• the exclusive nature of the relationship;
• the period of cohabitation;
• the couple’s commitment to share a household, and each partner’s role in the maintenance and management of the shared household;
• the couple’s financial and emotional support towards each other, and whether the partners have assumed a duty to support each other;
• if the couple has jointly purchased immovable property, which is registered in both their names;
• whether the couple has joint insurances;
• whether the partners are reciprocal beneficiaries in each others’ wills;
• any conduct or act that expresses and/or confirm the intention of the parties to be in a permanent life partnership; and
• any written agreement the couple has entered into expressing their intention to be in a permanent life partnership.

Legal consequences 

In order to determine the legal consequences that may be attributed to a same-sex life partnership, it is important to note that there is a distinction between a same-sex life partnership where the partners have assumed a responsibility to maintain each other reciprocally and one where the partners have not assumed such a responsibility.

In the absence of an agreement that the partners assume a responsibility to maintain each other, a court will look at the facts of each case to determine whether such a responsibility has been assumed.

Irrespective of whether the partners have assumed a responsibility to maintain each other

Irrespective of whether the partners have assumed a responsibility to maintain each other, there are certain legal consequences attributed to a same-sex life partnership:

• A partner can obtain protection in terms of the Domestic Violence Act, which defines a ‘domestic relationship’ in such a way to include unmarried persons who ‘live or lived together in a relationship in the nature of marriage’ even if they are or were unable to marry each other, as well as persons who ‘share or recently shared the same residence’.
• A same-sex or heterosexual permanent life partner qualifies as an ‘interested person’ for the purposes of Chapter 5 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. This implies that a life partner is regarded as having a ‘material interest in the well-being’ of a victim of a sexual offence which, for example, entitles such a person to bring an application for the alleged offender to undergo a HIV test.
• The partners can jointly adopt a child.
• A partner may adopt a child of the other partner.
• In the event that a female same-sex life partnership no longer exists, and one of the partners gave birth to a child as a result of artificial insemination, the partners may be co-holders of parental rights and responsibilities in respect of such a child, providing that it is the child’s best interests.
• A partner qualifies as a spouse for the purposes of the Immigration Act, Act 13 of 2002.
• A partner qualifies as a dependant in terms of the Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993.
• A partner may be, upon the death of the other partner, entitled to the pension fund benefits of the late partner.

The Pension Funds Adjudicator has held that pension fund rules that exclude same-sex life partners from benefits that are conferred on spouses and heterosexual life partners unfairly discriminate against same-sex life partners on the grounds of their sexual orientation and such discrimination is unjustifiable.

When the partners have assumed a responsibility to maintain each other

In addition to the legal consequences set out above, the following additional legal consequences are attributed when the partners have assumed a responsibility to maintain each other:

• A partner may be registered as a dependant on the other partner’s medical aid scheme.
• A partner qualifies as a spouse in terms of the Intestate Succession Act, Act 81 of 1987.

Terminating a same-sex life partnership

A same-sex life partnership may be terminated by either partner, or by agreement between the partners, or in the event of a partner’s death.

Termination by death

• In the event that the partners were co-holders of parental rights and responsibilities, either obtained through an adoption or through an agreement, the living partner will be sole holder of parental rights and responsibilities. The living partner is also entitled to institute a claim against the dead partner’s estate for maintenance of the children.
• A partner may claim damages in terms of the Compensation for Occupational Injuries and Diseases Act, Act 130 of 1993, if applicable, provided that the partners have assumed the responsibility to maintain each other.
• A partner may be entitled to the pension fund benefits of the late partner, provided that the partners have assumed the responsibility to maintain each other.
• Provided that the partners have assumed a responsibility to maintain each other, a partner qualifies as a spouse in terms of the Intestate Succession Act, Act 81 of 1987, which means the living partner may inherit the same as a spouse in a civil marriage or union when their partner passes away without a will.

Termination by separation

• In the event that the partners were co-holders of parental rights and responsibilities, the partners will have to reach an agreement in respect of what arrangements of care and contact will serve the best interests of the child. The partners, unless there are circumstances which justify that it is not in the child’s interests, remain co-guardians. Both partners are also, in accordance with their respective means, liable to maintain the child.
• A partner is not entitled to claim personal maintenance from the other partner, but are able to in the case of death in certain circumstances.
• If the partners have joint assets, a partner can approach the court and ask for an order that these assets be divided equally.
• A partner may, if applicable, approach the court for assistance in terms of the Domestic Violence Amendment Act.

For more information on the laws and rules surrounding same-sex marriages in South Africa, consider consulting a family lawyer who specializes in LGBTQ+ rights. They can provide professional guidance and support in navigating the legal landscape and ensuring that your rights are protected.

Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. Please consult with a qualified legal professional for specific legal advice pertaining to your situation.