BYLINE: Jaco Barnard
The Civil Union Bill is celebrated as a marvel because "we give gay couples the choice upfront on whether they want a civil union partnership or a marriage", Deputy Minister of Justice Johnny de Lange reportedly said on SABC.
I, however, count among those who abhor the Civil Union Bill as a monster. It seems gay couples are getting a great deal - a choice upfront between marriage and civil union partnership. My answer would be "If only". If only the Civil Union Bill did provide the choice De Lange is referring to. If only gay couples were given the choice to get married or to enter into a civil union. It is precisely because this bill generates the opportunity for the lies and conjury exemplified by De Lange's statement that it can only be regarded with, and as, contempt.
The Civil Union Bill is unconstitutional at best. Anybody reading of the Civil Union Bill and the Constitutional Court's judgment in Minister of Justice and Others v Fourie and Others, would find that, once again, this bill is not in conformity with that judgment.
The bill simply does not give same-sex couples the choice between a marriage and a civil union partnership. The bill defines a civil union as "a civil partnership or a domestic partnership". A "civil partnership" is the "civil union" that pertains to same-sex couples.
The bill states in section 13 that the legal consequences of a marriage apply to a "civil partnership" and that "all references to marriage in any other law, including the common law" include a civil partnership - but with one exception, namely that a reference to "marriage" in the Marriage Act does not include a reference to civil partnership.
The practical effect of these provisions is simply that gay couples wishing to marry will not be allowed to use the Marriage Act. Now, the Marriage Act was held in the Fourie case to rely on the common law definition of marriage and since the common law definition of marriage included only a consortium omnis vitae - the rights, duties and responsibilities accruing to spouses in a marriage - between a man and a woman, the Marriage Act was found to be unconstitutional to the extent that it does not allow for a same-sex marriage.
The Civil Union Bill, however, provides that, "with the exception of the Marriage Act", references to "marriage" in common law include civil partnerships. …