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Civil Unions Act

13 December 2007

Only the relevant extracts from the Act pertaining to conveyancing and notarial practice follow:

1. DEFINITIONS
"civil union" means the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others:

"civil union partner" means a spouse in a marriage or a partner in a civil partnership, as the case may be, concluded in terms of this Act;

"marriage officer" means -
(a) a marriage officer ex officio or so designated by virtue of Section 2 of the Marriage Act; or (b) any minister of religion, or any person holding a responsible position in any religious denomination or organization, designated as marriage officers under Section 5 of this Act;

"Minister" means the Cabinet member responsible for the administration of Home Affairs;

2. OBJECTIVES OF ACT
The objectives of this Act are -
(a) to regulate the solemnisation and registration of civil unions, by way of either a marriage or
a civil partnership; and
(b) to provide for the legal consequences of the solemnisation and registration of civil unions.

3. RELATIONSHIPS TO WHICH THE ACT APPLIES
This Act applies to civil union partners joined in a civil union.

4. SOLEMNISATION OF CIVIL UNION
(1) A marriage officer may solemnize a civil union in accordance with the provisions of this Act.
(2) Subject to this Act, a marriage officer has all the powers, responsibilities and duties, as conferred upon him or her under the Marriage Act, to solemnize a civil union.

8. REQUIREMENTS FOR SOLEMNISATION AND REGISTRATION OF CIVIL UNION
(1) A person may only be a spouse or partner in one marriage or civil partnership, as the case may be, at any given time.
(2) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act.
(3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.
(4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated.
(5) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in Subsection (4).
(6) A civil union may only be registered by prospective civil union partners who would, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act.

12. REGISTRATION OF CIVIL UNION
(1) The prospective civil union partners must individually and in writing declare their willingness to enter into the civil union with one another by signing the prescribed document in the presence of two witnesses.
(2) The marriage officer and the two witnesses must sign the prescribed document to certify that the declaration made in terms of Section 11(2) was made in their presence.
(3) The marriage officer must issue the partners to the civil union with a registration certificate stating that they have, under this Act, entered into a marriage or a civil partnership, depending on the decision made by the parties in terms of Section 11(1).
(4) The certificate contemplated in Subsection (3) is prima facie proof that a valid civil union exists between the partners referred to in the certificate.

13. LEGAL CONSEQUENCES OF CIVIL UNION
(1) 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.
(2) With the exception of the Marriage Act and the Customary Marriages Act, any reference to -
(a) marriage in any other law, including the common law, includes, with such changes as may be required by the context, a civil union; and
(b) husband, wife or spouse in any other law, including the common law, includes a civil union partner.

A discussion of the Act and its applicability to Conveyancing and Notarial Practice now follows:

INTRODUCTION
The Civil Unions Act No. 17 of 2006 (hereinafter referred to as the Act) published in Government Gazette No. 29441 dated 30 November 2006, came into operation on 30 November 2006 (see Section 16 of the Act).

AIM OF THE ACT
The main aim of the Act is to provide for the solemnisation of civil unions by way of marriage or civil partnership, and the legal consequences thereof as well as matters incidental thereto. A civil union is defined as being a voluntary union between two persons of the same sex or of opposite sexes, older than the age of 18 and solemnized and registered either by way of marriage or civil partnership. "Civil union partners" thus have a choice between a marriage or a civil partnership.

APPLICABILITY OF ACT
It is clear from Section 8(6) of the Act, that a "civil union" may only be registered by prospective civil union partners who are not prohibited from concluding a marriage under the Marriages Act of 1961 or the Customary Marriages Act of 1998.

REGISTRATION CERTIFICATE
In terms of Section 12(3) of the Act, the "marriage officer" as defined in the Act must issue to the partners a registration certificate either indicating that they entered into a marriage or a civil partnership. Such a registration certificate will serve as proof that a valid civil union exists, should such proof be required by the Deeds Registry.

MATRIMONIAL CONSEQUENCES
A civil union will have the same matrimonial and patrimonial consequences as a marriage concluded in terms of the Marriage Act of 1961. Thus, if the civil union partners refrain from entering into an antenuptial contract and having the same registered in the Deeds Registry, the civil union is one of in community of property and the provisions of the Matrimonial Property Act 88 of 1984 apply mutatis mutandis.

DISSOLUTION OF CIVIL UNIONS
Civil unions can only be terminated by the death of one of the parties or by virtue of divorce in the terms of the Divorce Act of 1979.

DESCRIPTION OF PARTIES AND DEEDS OFFICE PRACTICE
All the provisions of the Deeds Registries Act No. 47 of 1937 and the Sectional Titles Act No. 95 of 1986 can be applied to civil unions and civil union partners. The same rules applicable to persons married in community/out of community of property (marriages in terms of the Marriage Act, 1961) are applicable to partners in a civil union (i.e. vesting of property); however, where a "civil partnership" instead of a marriage, as referred to in the definition of 'civil union' in Section 1 of the Act, is registered, the parties must be described as follows:
- in instances where no antenuptial contract has been registered:

ABC
Identity Number …..
and
XYZ
Identity Number …..
partners in a civil partnership in community of property

- in instances where an antenuptial contract has been registered:

1. ABC
Identity Number …..
partner in a civil partnership out of community of property
2. XYZ
Identity Number …..
partner in a civil partnership out of community of property

The same rules applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act of 1961 apply to the registration of antenuptial contracts of persons married in terms of the Act; and

The same rules applicable to the lodgement of marriage certificates and divorce orders of persons married in terms of the Marriage Act of 1961 apply to persons married in terms of the Act.

AMENDMENT AND UPDATING OF EXISTING DEEDS
The provisions of Section 17(4) and 93 apply mutatis mutandis to deeds registered in the name of a civil union partner prior to conclusion of the marriage or civil partnership.

CHIEF REGISTRARS' CIRCULAR 1 OF 2007
This practice note must be read in conjunction with CRC 1 of 2007.

Republished with permission from SADeeds Journal

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