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A hole? - Reply

1 March 2007

In A hole? Donald Moore invites comments from anyone interested.

Mr Moore's first question relates to the proprietary consequences of a marriage or civil union in terms of the Civil Union Act, 2006 (Act No. 17 of 2006), ("the Act"), if the parties to such a marriage or union are of the same sex, specifically if both of them are of the male sex and one of them is domiciled in, say, England.

In the last paragraph of his article, Mr Moore asks the second question, whether the proprietary consequences of a heterosexual marriage or civil union in terms of the Act, where the husband is domiciled outside of South Africa, will be the same as for a marriage in terms of the Marriage Act, 1961 (Act No. 25 of 1961), as amended ("the Marriage Act").

The answer to the second question is: "YES!" Section 13 (1) of the Act provides that: "The legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union." This position has been fully and authoritatively dealt with in paragraph 4.1 of Chief Registrar's Circular No. 1 of 2007.

I now answer the first question. As a point of departure, I refer to paragraph 4.2 of Chief Registrar's Circular No. 1 of 2007, from which it is clear that a reference to marriage, in the common law, in particular, includes a civil union and a reference to husband, wife or spouse, in the common law, in particular, includes a civil union partner. This means, therefore, thatin a heterosexual marriage or union in terms of the Act, the law of the country, in which the husband is domiciled, will govern the proprietary consequences of the marriage or union.

Where the parties to a marriage or civil union in terms of the Act are of the same sex, the common law rule about the domicile of the husband does not apply because (a) neither of the parties is a husband or a wife, (b) naturally, there cannot be a husband without a wife and vice versa and (c) the said common law rule only finds application where there is a husband and a wife.

I refer to the first edition of the "Reader's Digest Great Illustrated Dictionary, in which "husband" is defined as: "A man joined to a woman in a marriage."

On the basis of the afore-going, there might be no hole after all.

In conclusion, I make the observation that, because of its unfairly discriminatory nature, the afore-mentioned common law rule should, like the marital power which a husband used to have over his wife, be repealed sooner than later: in the so-called new South Africa, a husband is no longer a pater familias !

Thabo Nqhome
23 February 2007

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