Civil Union Bill: deliberations

Home Affairs

07 November 2006
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
8 November 2006
CIVIL UNION BILL [B26-2006]: DELIBERATIONS


Chairperson: Mr H Chauke (ANC)

Documents handed out:
African National Congress proposal on Civil Union Bill
Civil Union Bill [B26-2006]
Civil Union Bill [B26B-2006] as voted on by this Portfolio Committee

SUMMARY
The Committee met with legal advisors of the Departments of Home Affairs and Justice and Constitutional Development, the South African Law Reform Commission and State Law Advisors to deliberate the Civil Union Bill. A key proposal by the ANC, that received general support from other parties, was that all reference to domestic partnerships should be removed from the Bill and this issue should be dealt with in a separate Bill early next year.

The ANC then tabled a new draft of the Bill, dealing only with the issues of civil unions. It had been clear from the public hearings that religious groups and traditional leaders objected to "marriage", as understood in the Marriage Act, being extended to same sex partners. The gay and lesbian lobbies had objected to the fact that although their unions would be accorded the same property and inheritance rights, they would not be able to describe themselves as married, and further believed that the Bill’s attempts to provide a separate regime were discriminatory. Some of the legal drafters believed that the Bill was open to constitutional challenge on this basis. Therefore the ANC draft proposed that civil unions should be applicable to all adult persons over 18, irrespective of gender, and that such persons should be able to choose whether they wished their civil union to be described as a "civil partnership" or as a "marriage". A certificate would be issued in whatever wording they chose. The same legal consequences would apply to all couples under this Bill as were presently accorded to heterosexual married couples under the Marriage Act. Marriage solemnisation ceremonies could be performed under the Marriage Act, the Customary Marriages Act, or this Bill, but the solemnisation under this Bill would take a civil form. Religious marriage officers could apply for designation also under this Bill, but would still have the option to decline, on grounds of conscience, to perform ceremonies for same-sex couples.

The Democratic Alliance asked for clarity on the definition of marriage, whether a definition would be included in the Bill, and whether the certificate, merely referred to as "the prescribed document" would reflect the fact of a marriage or of a civil partnership. It wondered whether it was necessary to have the Bill at all and whether it would not be preferable simply to allow the word "or spouse" to be read into the Marriage Act, in terms of the fall-back position. The wording of clause 6, relating to marriage officers who did not wish to solemnise a same-sex union on the grounds of conscience, referred incorrectly to their "competence".

The African Christian Democratic Party was unhappy that the Bill made reference to marriage, when both the religious groups and the gay and lesbian lobby groups had objected. It was felt that the public submissions had not been taken sufficiently into account. It felt that no clear distinction was drawn between marriages under the Marriage Act or the Customary Marriages Act, civil partnerships and civil marriages. The essence of religious marriages was affected.

The United Christian Democratic Party described the Bill as a sweetener for the middle of the road position.

The Department of Justice clarified that parties could not enter into both a civil union under this Bill and a marriage under the Marriage Act or the Recognition of Customary Marriages Act. It further clarified that there was no definition of marriage included in the Marriage Act and therefore it had not been considered necessary to define marriage in this Bill. The Marriage Act contained the common law wording relating to marriage, and the references to "husband" and "wife" made it clear that the marriages were limited to heterosexual marriages. The wording of this Bill referred only to any persons over 18, avoiding the words "husband" and "wife" and was thus gender neutral.

Further amendments to the draft were suggested by the Chief State Law Advisor, to clarify the objections on ground of conscience by a marriage officer, under Clause 6. It was agreed that the clause should also be examined to incorporate the suggestions of the Democratic Alliance in relation to "competence". It was decided that the draft as presented by the ANC would form the basis of the new draft to be prepared by the legal drafters from the Department, and that the new draft Bill would be presented for debate and a final vote the next day.

MINUTES
Domestic Partnerships: Chapter 3 of Civil Union Bill

The Chairperson stated that the Committee would allow further party positions to be presented and discussed.

Mr F Beukman (ANC) presented input from the African National Congress study group. The ANC proposed that Chapter 3 of the Bill and all related provisions be removed from the Bill. It proposed instead that the issue of domestic partnerships should be dealt with in a separate Bill to be formulated by the Department of Home Affairs early next year. The ANC did not seek to negate the status of women in any way by means of its proposal but was of the opinion that the issue of domestic partnerships would be better served in a separate piece of legislation as there would then be time to explore all legal ramifications.

Mr S Swart (ACDP) supported the proposal of the ANC.

Mr I Mfundisi (UCDP) agreed that the removal of any reference to domestic partnerships was welcomed, as further engagement on the matter was needed.

The Chairperson stated that the removal of all reference to domestic partnerships would have to be carefully conveyed to the executive arm of government from whom the Bill had originated. The Committee would expect a new Bill on domestic partnerships early in the new year.

Mr Deon Erasmus (Director: Drafting, Legal Services, Department of Home Affairs, indicated that the draft Bill would therefore become an ‘A’ Bill.

Civil Union aspects of the Bill
The Committee then proceeded to consider the remainder of the Bill, which applied to the civil union aspects only.

Kgoshi Morwamoche (ANC) raised the ANC view that the remainder of the Bill should be worded so that it applied to "consenting adult persons", as opposed to being strictly confined to same-sex couples.

The Chairperson proposed that the Bill be generalised to include all couples, irrespective of gender, rather than being restricted to same-sex couples only.

Mr Swart and Mr Mfundisi requested more time to study the proposal further before taking a decision.

The Chairperson agreed that more time would be given to study the proposal as the issues were sensitive and demanded careful attention.

Mr Beukman added that the rationale behind the proposal was to broaden the scope of the Bill to avoid future challenges on the grounds of discrimination. The Bill would no longer be offering a separate regime only for same sex couples.

Mr Mfundisi declared that the proposal could be perceived as a "sweetener" for the middle of the road position.

Mr S Swart asked if the solemnisation process would then be the only difference between the existing Marriage Act and the Civil Union Bill. He sought clarity on the legal implications of including heterosexual couples in the Bill.

Dr Linette Louw Legal Advisor, Department of Justice, explained that if the Bill were to be drafted in this form, it would afford all people the choice to get married under the Marriage Act or to create a civil partnership under the Civil Union Bill. The civil partnership would have the same legal consequences as a marriage. In contrast, the domestic partnership, now to be included under a separate Bill, would have only three consequences namely property, maintenance and succession.

Ms S Kalyan (DA) asked whether the Bill would retain the same title.

Dr Louw responded that the Bill’s title would remain the same. Civil unions would refer to both marriages and civil partnerships.

Ms Kalyan sought clarity on the definition of marriage.

Dr Louw stated that marriage was a voluntary union between two persons eighteen years and older, solemnised or registered in terms of the Bill. The Bill would apply exactly the same legal consequences to couples as to couples who chose to marry under the Marriage Act.

Mr Swart asked for the South African Law Reform Commission to provide input on its two–option proposal.

The Chairperson requested Members not to create further confusion by introducing issues into the debate that had not been agreed upon.

Mr Swart accepted the ruling but requested a briefing on the proposed changes introduced by the ANC.

Ms Kalyan asked whether the definition of marriage would be included in the Bill.

The Chairperson proposed that the issue of the definition of marriage would be flagged and discussed the following day. Questions should be directed at the formulators of the proposals as opposed to Department officials.

Mr Swart retorted that he was seeking guidance on the legal ramifications of certain proposals.

Mr Beukman stated that Members would still need to discuss the issue whether Marriage Officers employed by the State could refuse to perform same-sex unions.

Mr W Skhosana (ANC) proposed that Members be accorded an opportunity to study the ANC proposal in greater detail before resuming the meeting.

The Chairperson agreed and political parties were given one hour to study the proposal and consult on core issues.

The meeting resumed after one hour.

Mr Beukman stated that the proposed amendments would result in a situation where the Marriage Act would remain, and would create the option for heterosexual couples to marry. The new Bill would also provide for the option to marry. The Constitutional Court had issued certain guiding principles in terms of its ruling, in particular the instruction that same-sex couples should not in any way be marginalized through new legislation. The proposal put forward by the ANC thus gave couples – same sex and heterosexual - a choice under the Bill to enter into a marriage or a civil partnership. Therefore amendments to the definition of marriage were proposed to make the provision clear that consenting adults had the right to marry in terms of the Bill. Marriage officers would be provided with an option to object or not to participate in a same-sex union.

Kgoshi Morwamoche stated that the proposal document did not originate from the Minister of Home Affairs but from the ANC.

The Chairperson requested discussion on the ANC’s proposals. The removal of any references to domestic partnerships would result in a shortened Bill. Significant amendments to the Bill would thus have to be carried out by the Department.

Ms Kalyan asked what would be the wording of the Civil Union Bill’s definition of marriage, and how it would differ from the existing definition in the Marriage Act.

Mr Beukman stated that the wording contained in the Marriage Act followed the common law definition. No reference to the common law definition existed in this Bill.

The Chairperson asked how a definition could be amended if it was not written down in an existing piece of legislation.

Adv Erasmus stated that marriage was defined in the Customary Marriages Act, but not specifically defined in the Marriage Act. That Act was based upon the common law definition of marriage and although there was no definition clause the terms of the Act made it clear that it applied to a "husband" and a "wife".

The Chairperson stated that the Constitutional Court had found the definition of marriage to be unconstitutional. He asked how this could be so if no definition existed in the principal Act. Certain submissions had requested that the word "marriage" be deleted altogether. The issue now seemed to revolve around whether the Bill should contain a definition of marriage or not. The question was how a common law definition could be found to be unconstitutional. Members should be clear that the Bill proposed meaningful solutions to address the dilemna. They had to decide whether the solutions would adequately meet the requirements of the judgement. Common law definitions could change over time. The concept of marriage had different interpretations and meanings that had to be borne in mind. Clear and understandable legislation had to be produced. The point to consider was why the Bill defined a civil union and not a marriage.

Mr S Swart noted that the essence of the debate was the word "marriage". He referred to a statement by the State Law Advisors that the removal of the word "marriage" from the Bill would be constitutional. He asked why the Bill had to make reference to marriage. Religious groups and homosexual lobby groups would be unhappy with the inclusion of the word "marriage". He asked for legal guidance on the inclusion of the concept of marriage in the Bill.

Mr Enver Daniels (Chief State Law Advisor) clarified the position of the State Law Advisors regarding the use of the word "marriage" in the Bill. The Constitutional objection to the Bill as drafted was that only same sex couples could choose to have their union solemnised as a civil union or a marriage. The amendments now proposed would cater for all couples and provide an opportunity to solemnise their relationship as either a civil union or a marriage. Either term could be used, at the option of the couple. The State Law Advisors were comfortable with the definition of a civil union. Marriage was not defined in any legislation, as the concept of marriage was a common law definition that embodied a union between a man and a woman. It was in this sense that the Constitutional Court had found the common law definition of marriage to be unconstitutional. No discussion had taken place between the legal drafters of the Departments of Home Affairs and Justice, the ANC and the State Law Advisors regarding the proposals now put forward.

Dr Louw concurred that no definition of marriage existed in the Marriage Act. The Bill sought to give effect to the Constitutional Court judgement in according all rights and legal consequences to same-sex and heterosexual civil unions as accrued to heterosexual marriages. The common law definition of marriage would be developed in accordance with section 39.2 of the Constitution. The common law could be changed in line with constitutional principles. Therefore, no definition of marriage had to be included in the Bill.

Ms Kalyan asked whether the same-sex couple who chose to call their union a marriage would be issued with a "marriage" certificate and whether their union would be recorded in the Population Register as a marriage or as a civil union.

Dr Louw stated that a marriage certificate would be issued and the union would be registered as a marriage in the Population Register.

Ms Kalyan responded that clause 12 (2) did not refer to a marriage certificate but rather a "prescribed document".

Adv Erasmus stated that the parties would be issued with a certificate whose wording would be dependant on the decision of the parties whether they wished it to be recorded as a marriage or as a civil union.

Ms Kalyan asked why the Bill referred to marriage officers who refused to conduct same-sex unions as not being competent. An objection by a marriage officer on grounds of conscience was not a reflection of his or her competence.

Mr Beukman answered that a more user-friendly word could be used if need be.

The Chairperson asked Mr Beukman to briefly summarise the proposed amendments and to clarify certain issues.

Mr Beukman briefly outlined the proposed amendments as presented by the ANC. He noted that there was a definition of "civil union" as a voluntary union of two persons, both eighteen years or older, which was solemnised and registered either as a marriage or a civil partnership under this legislation. A civil union partner was either a spouse in a marriage, or a partner in a civil partnership. The draft Bill provided for the designation of the officers, and also still provided that a marriage officer could notify the Minister that he or she objected to solemnising a same-sex union. Provision was made in the Bill for objections, in the same way that a person could object currently to a marriage, and for the solemnisation process. The registration certificate would state whether a person had entered a marriage or a civil partnership and would be proof of a valid civil union. The draft stated that all legal consequences that applied under the Marriage Act applied equally under this legislation. The Bill provided also for offences and penalties and gave the Minister the power to make regulations. The regulations applicable to the Marriage Act would also apply to this legislation.

Mr Swart suggested that the reasons for insertions should be explained. For example, the insertion into the Preamble of the reference to section 15(1) of the Constitution should be justified. The ACDP supported the reference to section 15 in the Preamble.

The Chairperson stated that issues of consciousness had to be recognised. Members had to understand all aspects of the Bill in order to explain and defend the provisions.

Ms Kalyan referred to clause 8(1) and asked whether the reference to "civil partnership" should be removed.

Dr Louw reminded Members that civil union referred to both a partnership and a marriage. The particular clause intended to stipulate that a spouse could only be a partner in one civil partnership or marriage and to clarify that the Bill was not to apply to polygamous unions.

Kgoshi Morwamoche asked if one could be a spouse in a customary marriage and a civil union simultaneously.

Adv Erasmus referred to clause 8 (2), which stated that a person in a civil union could not conclude a marriage under the Marriage Act or the Customary Marriages Act, and that a person married already under the Marriage Act or Customary Marriage Act could not conclude another union under the Civil Union Bill.

Mr Swart asked for clarity why the Bill no longer provided that the marriage officer could have the right to decide which type of union would apply if the parties could not agree on either a marriage or civil partnership.

Mr Johan de Lange, Legal Drafter, Department of Justice responded that there was now clearly a choice between a civil partnership and a marriage. The deleted section giving the marriage officer the right to decide was not sound law as it legislated for an improbable scenario. Parties should have clearly agreed on their chosen option before the solemnisation.

Mr Mfundisi suggested that the choice given to the marriage officer in the previous drafts had probably been intended to accommodate instances where one party changed his or her mind at the last minute.

Mr De Lange responded that the deletion did not change the law in any way. An argument over which arrangement to follow was unlikely to occur in front of the marriage officer.

Mr Swart believed that clause 13 contained the essence of the debate insofar as reference to marriage was concerned. This clause now provided that reference to marriage, in all laws other than the Marriage Act or the Customary Marriage Act, included a civil union. The gay and lesbian community had specifically requested in their submissions that the Bill make clear reference to marriage. He felt that many of the public submissions had been ignored. Clause 13 referred to the legal consequences of a marriage, but the difference between a civil union marriage and a marriage in terms of the Marriage Act or Customary Marriages Act had not been clearly explained.

The Chairperson stated that the reason for the reference to the Marriage Act was to clearly emphasise that the same legal consequences and entitlement would accrue to civil unions as applied under the Marriage Act. This would be in line with the Constitutional Court judgment.

Ms Kalyan asked what was the essential difference between the proposed Bill and the Marriage Act. She asked why the Constitutional court ruling should not simply be allowed to be applied from 1 December 2006 where the word "spouse" would be read in to the Marriage Act.

Mr Beukman responded that extensive debate on the matter had already transpired. He believed that Members should focus on the proposed amendments as opposed to introducing political arguments.

Mr Swart responded that Members had not had an opportunity to study the proposed amendments prior to the meeting. He stated that legislation was being rushed through Parliament that had far reaching implications. The essence of the debate was the difference between the two regimes.

Mr J Sibanyoni (ANC) stated that the passing of the Bill would protect the traditional religious marriage provided for in the Marriage Act, due to the creation of a separate institution for same-sex couples. The Bill would also allow people to be married without a religious service.

Kgoshi Morwamoche believed that the Bill now proposed was the only viable method of addressing the requirements of the Constitutional Court, as it would now include those previously excluded by the Marriage Act or the Customary Marriage Act.

The Chairperson stated that people who desired a religious marriage could choose to get married under the Marriage Act and those who did not want a religious service included in their marriage could opt for a solemnisation under the Bill. In addition, the Bill sought to broaden the definition of marriage to include those presently excluded.

Mr Swart countered that religious ceremonies could occur under the provisions of the Bill. Such a provision would result in objections from religious groups in that same-sex couples could undertake religious ceremonies as part of civil unions. The Bill would affect the essence of religious marriages. Certain public submissions had been ignored.

The Chairperson disputed the statement that submissions had been ignored. Extensive public hearings had been held and comments taken into consideration. Members should raise counter-proposals to the –proposals put forward if they wished to do so.

Mr Swart acknowledged that the Bill did represent an attempt to find a middle way between the various groupings. However, difficulties remained with the present formulations and differences of opinion would remain.

The Chairperson declared that the public hearings had revealed that religious groups held different opinions on the matter. For example, the Council of Churches had offered differing views from one province to another. Dissenting views existed within church and religious groupings on the issue of solemnising same-sex marriages. Some churches wanted to solemnise same-sex marriages. Therefore, a single position representative of all religious groups was difficult to attain. In contrast, traditional leaders had unanimously rejected the notion of same-sex marriages and had called for a Constitutional amendment. The Bill would also allow certain groups outside of the mainstream religious groupings to conduct solemnisation ceremonies. All issues expressed at the public hearings had been taken into account and debated. The Committee had only in reality been allocated two months to process the Bill as opposed to the perceived one year. The Constitutional Court had to be notified of the time constraints experienced by Parliament in processing the Bill and addressing the Court ruling. Public participation in the process was critical. The Department would be tasked to absorb the proposed amendments into a revised final draft to be reintroduced tomorrow.

Mr Beukman acknowledged that in a perfect world with enough allocated time, completely new legislation would have been a sound solution. However, Parliament had to produce the required changes to the law in accordance with the time framework imposed by the Constitutional Court. The Marriage Act remained a vehicle to deal with the religious marriages and the arguments that marriage should only be a union between a man and a woman. The Bill would seek to broaden the choice of individuals in terms of marriage and cater for issues raised at the public hearings. The Bill had to reflect a compromise in terms of the Constitutional Court ruling and the myriad of positions raised during legislative process.

Mr Morwamoche proposed that the essence of the new draft Bill be adopted so that the legal drafters could produce a final draft for approval on the following day.

Mr Swart acknowledged that the religious groupings were divided during the public hearings. However, both the religious and gay and lesbian lobby groups had been united in rejecting the key concepts of the Bill, which had still not been addressed in the new proposals. Public outcry from certain quarters was inevitable.

Mr Sibanyoni noted that the Bill would accord religious groups the right to apply to conduct same-sex marriages if they so chose. A failure to apply would mean that religious groups would continue to operate in accordance with the Marriage Act.

The Chairperson noted that marriage officers would have to be instructed on the provisions of the Bill to assist in implementation.

Mr Daniels proposed that the word "grounds" in clause 6 be changed to the singular so that the clause could refer to conscience, religion and belief together as constituted as one ground. The rights of marriage officers to object to conducting same-sex unions would thus be limited.

The Chairperson declared that parties had to present final positions tomorrow. The drafters would be instructed to produce a new draft at tomorrow’s meeting, incorporating the suggestions made at today’s meeting.

Adv Mukesh Vassen (Parliamentary Legal Advisor) clarified that, in terms of rule 249 (3) (g), the Committee could introduce an amended or redrafted Bill. Adv Erasmus confirmed that the draft would be produced under this Rule.

The Chairperson stated that the proposed amendments would be included in a new draft Bill to be produced tomorrow. Parties would have a final opportunity to consider key aspects of the Bill the following day, before voting on its adoption.

The meeting was adjourned.

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