Civil Union Act Implementation: briefing by Home Affairs Department

Meeting report

IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF WOMEN JOINT MONITORING COMMITTEE
22 June 2007
CIVIL UNION ACT IMPLEMENTATION: BRIEFING BY HOME AFFAIRS DEPARTMENT

Chairperson:  Ms S Morutoa (ANC)

Documents handed out:
Powerpoint presentation on Civil Union Act, 2006 (Act No. 17 of 2006)
Civil Union Act, 2006 (Act No. 17 of 2006)

Audio Recording for the Meeting

SUMMARY
The Department of Home Affairs briefed the Committee on the progress of implementation of the Civil Union Act, whilst noting that it was still new and that not much had been achieved in the short time since it had come into operation. The Department summarised the background to the Act, which had come into operation on 30 November 2006, and summarised its provisions. It then presented statistics on the number of marriage officers registered, and indicated that in total 671 civil unions had been solemnized. The Committee questioned the implications of the Act on women and children, sought clarity on some of the definitions, the dissolution of civil unions, whether parties would have to divorce in order to change their marriage to a civil union, and placed great emphasis on whether there had been sufficient communication about the Act, as many people did not appear to understand it. Further questions addressed the status of the marriage officers under the Marriage Act and the Civil Union Act, and addressed the need for further education and discussion on issues affecting understanding.

MINUTES
Civil Union Act Briefing by Department of Home Affairs (DHA)
Adv Yolanda van Aswegen, Assistant Director: Legal Services, DHA, gave a brief yet detailed description of the background to the Civil Union Act, which was intended to provide for the solemnisation and registration of civil unions, either by marriage or civil partnerships. It was intended to address the situation that the Constitutional Court had declared that the common law definition of marriage was inconsistent with the Constitution, and failed to provide same sex couples with the status and benefits enjoyed by heterosexual couples who could marry under the Marriage Act.

Adv van Aswegen summarised each section of the Civil Union Act to explain its meaning and effect. She stressed that Section 13 provided that the civil unions would have the same legal consequences as marriages solemnised under the Marriage Act, and that any references to marriage, husband, wife or spouse, in statutory or common law, would include civil union partners. The Act came into effect on 30 November 2006.

Adv van Aswegen stated that the Act fell for implementation under the Department of Home Affairs. This Department had communicated with all local and foreign offices on implementation of the Act, and full training sessions were conducted, which included representatives from all provinces, with the purpose of sensitising marriage officers. Follow up training had continued until May 2007. The national population register captured the civil unions and the new system was rolled out on 30 November. Designated Departmental Marriage Officers and magistrates were obliged to conduct civil unions, unless they informed the Minister in writing of their objections. Ministers of religion who had not been designated under this Act were encouraged to apply. Statistics were tabled of marriage officers in the provinces and at foreign offices, and it was noted that 25 applications were received for appointment. 671 marriages had been solemnised under the Act.

Discussion
A member wanted to know if passports or South African drivers’ licences could be used instead of an identity document for proving identity under this Act.

Mr Norman Ramashiya, Chief Director: Social Welfare and Population, DHA, replied that any recognised documents could be used, and these fell into that category.

Adv van Aswegen added that according to the Identification Act, an identity document included drivers’ licences and passports; but if a passport was used then a valid temporary residence permit was required. If neither could be produced then provision had been made for the forms that had to be filled out.  

A member asked if magistrates could be marriage officers.

Mr Ramashiya replied that magistrates could also be registered as marriage officers.

Adv van Aswegen included that magistrates could be appointed as such in terms of the previous marriage Act.   

A member enquired that if there was provision for dissolution of civil unions, and if this was effected in the same way as dissolution of marriages.

Mr Ramashiya answered that dissolution of a civil union was done in the same way as dissolution of marriages. same as other marriages.
 
Ms F Mazibuko (ANC) commented that the Department did not unpack the legislation to her satisfaction. She mentioned that many in her constituency did not understand the definitions. She required clarity on whether the Civil Union Act was applicable to both heterosexual and same sex couples.

Adv van Aswegen replied that the reason why she did not go into all the definitions was because there were so many of them.  However, she gave the definition of a civil union, as ‘a voluntary union of two persons, of 18 years and older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance of the procedures prescribed in this Act to the exclusion, while it lasts, of all others’. She stressed that the union had to be voluntary, and the participants could not be minors. There was no differentiation between sexes and “man “ and “woman” were not used. There were some heterosexual couples that had used the Civil Union Act to solemnise their relationship already in order to have a recognised legal relationship. They could choose whether they would prefer the term ‘marriage’ or ‘civil partnership’ to apply. The words “to the exclusion.. of all others” was illustrative of the fact that this would not apply polygamous unions. She also clarified the definition of a marriage officer, as there was a difference between marriage officers in the Marriage Act and those in the Civil Union Act. Not all religious leaders in South Africa chose to solemnise civil unions, and therefore even if they were already designated as Marriage Officers under the Marriage Act, this would not automatically apply to the Civil Union Act. They must make formal application to be registered to solemnise civil unions.

Ms Mazibuko asked for a breakdown of the statistics that were given, specifically with regard to race and type of couples.

Mr Ramashiya replied that the DHA did have those statistics on race and gender, but he did not have them to hand, and would provide this to the Committee as soon as he could.

Ms Mazibuko asked why there were only three Civil Union marriage officers in the Free State.

Mr Ramashiya replied that people had been given the option of choosing whether they would like to be involved with the Civil Union Act.  From the response received, only three marriage officers had been appointed. 

Ms Mazibuko asked why separate marriage officers were appointed under this Act instead of utilising the institutions that already existed.

Mr Ramashiya replied that this was because not every marriage officer would choose to be involved with the Act.  

Ms Mazibuko asked to what extent would the Civil Union Act benefit women.

Adv van Aswegen replied that a woman solemnising a relationship, whether homosexual or heterosexual, under this Act would have legally benefited if for some reason their partner had died or left them.

Ms Mazibuko asked if marriage officers were established in foreign countries for South African citizens living in those countries, and whether it would apply to foreign people. 

Adv van Aswegen replied that there were marriage officers in foreign countries for South Africans who could solemnise their unions at South African embassies. This did not apply to non-South Africans, as no civil unions of foreigners could be solemnised by South African marriage officers on foreign soil.

Ms J Masilo (ANC) asked what type of examinations the nineteen prospective marriage officers were currently writing.

Mr Ramashiya responded that before marriage officers’ applications could be approved they had to write the relevant examinations. 

The Chairperson asked if this meant that civil marriages were rife in South Africa if there were so few marriage officers in other countries.

The Chairperson wanted to know how the Act would affect children.

Adv van Aswegen replied that everything regarding children would be covered by the Children’s Act that had not yet come into operation. All the questions regarding the issues of children born or adopted into families who had solemnised Civil Unions would be thoroughly handled by that Act.

The Chairperson commented that although civil unions should be treated as equal to marriages they did have some other implications.

The Chairperson mentioned that in the constituency Members of Parliament would be dealing with the public. The public hearings, in her opinion, were not done effectively, as people still did not understand the Civil Union Act. She asked if something could be done by the Department. 

Adv van Aswegen replied that there were quite a few comments from elderly people, who were opposed to the Act. However, this was a new concept and new Act and therefore their reluctance was understandable. The Department had tried to educate people, and had gone through the Act section by section.

The Chairperson asked if the Department had utilised the Government, Communication and Information System (GCIS) and if there were nodal points. Some nodal points did not include many rural areas.
 
Ms Themba Kgasi, Director of Gender Services: DHA, replied that this had been done. A communications director, through the GCIS, as well as access to the NGO community based organisations had been used. DHA acknowledged that perhaps there was more that could have been done. However it had a meeting with other NGOs and would develop a partnership with them to utilise their resources and access to communities.

The Chairperson asked if the Act had any consequences or implications on women who were HIV positive, as they tended to be left aside. 

The Chairperson realised that there were non governmental associations that focused on issues of same sex partnerships, and wanted to know if there was any response from them on the Act. There had been criticism that same sex couples had wanted the unions to be described as marriages in the Act.

A Member commented that the Department was seemingly willing to and had assisted wherever it could. She asked where the information had been captured about the unions solemnised.

Mr Ramashiya replied that they had been directly solemnised from head offices.

The Member asked if the Department had done any follow-ups to find out how people were dealing with and perceiving the Act.

Mr Ramashiya replied that DHA had not received any negative reporting.

A Member asked if there had been any studies done to get experience from other countries that had previously implemented similar legislation.

Mr Ramashiya responded that before the implementation of the Act the Department had presumably consulted with other stakeholders

Ms Mazibuko asked why a person would have to divorce their partner, if they wished to enter into a civil union.

Adv van Aswegen responded that in South Africa one could only be in one form of legal union at a time.

Ms Mazibuko asked whether a civil union required women to change their surnames, as it was usually done in the Marriages Act.

Adv van Aswegen replied that the Civil Union Act was completely gender sensitive, as it referred to spouse and partner. One could choose to change one’s surname or remain with the original surname before entering into the civil union.

Ms Mazibuko also said that she believed that the Department had not done enough outreach work, as there were still people who did not understand the Act.  Many people, especially the African people, held traditional views. She asked if there was anything planned for more thorough outreach work.

Mr Ramashiya responded that during the implementation strategies DHA had outreach campaigns. DHA had already indicated that it had used media to try to give a better understanding of the Act to the communities and would continue to do so during this financial year.

Ms Kgasi added that she herself had been approached by many organisations where DHA was asked to speak upon several issues, and DHA had never declined to speak. It was unfortunate that they did not note these things.  DHA had a meeting with the newly established partnership of Alliance, who were a serious group of NGOs that would focus on gender issues.  DHA was giving information that was at its disposal. It had to be noted that the Act had not been in existence for long. The actual content of the Act had been lost, because it had been regarded as applying only to same sex relationships, when it was in fact for all. The Act also addressed the issue of gender implications, although it did not specifically address the issue of different genders. A critical issue would be education, and it was realised that DHA needed to do more. The Department had to deal with all issues that had been raised by the public to address the current ignorance and misperceptions.

A member followed up on the question of outreach work and asked if DHA had contacted local municipalities to assist with the outreach. 

Ms Mazibuko remarked that she listened to all radio stations yet had never heard a single reference to the Act. She assumed that radio would be the main means of communication as almost 100 percent of the population listened to radio. She would appreciate a list of all the areas that the Department had managed to reach.

Ms Kgasi replied that DHA did have public engagement to educate the public and relevant information was available at Home Affairs. It was unfortunate that in most cases when these sessions were done the public would attempt to overcrowd the sessions with other challenges that Home Affairs had. They could not respond on where they had been or how many times they had been there.

A member asked if there were brochures that were written in simple and straightforward language, so that they could be interrogated by anyone who would choose to do so.

Ms Mazibuko remarked that the Department and the Committee must begin to look at these perceptions together, so that eventually they would be able to merge all the legislation regarding marriage into one complete Act.

The Chairperson asked about the implementation amongst more traditional people.

Adv van Aswegen replied that DHA had experienced resistance in some rural areas, because the legislation was new, and people were used to the Marriage Act. There was a need to continue to educate people.  DHA had had to balance everyone’s rights, to form an accepted piece of legislation.

The meeting was adjourned.