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31 Oct 2006 00:00
There are some very important aspects of the Civil Unions Bill that have been ignored in the public debate about the proposed legislation.
If it is passed into law, it will have tangible benefits for a particularly vulnerable group who currently have no recourse to the law to protect their rights.
Consequently, they frequently suffer extreme hardship and economic abuse.
For these women, mostly poor and without access to other resources, even though the option of marriage is theoretically available, it is not a choice they are able to make and implement.
The Constitutional Court recognised this in another case and stated that “they often wish to be married, but the nature of the power relations within the relationship makes a translation of that wish into reality difficult”.
At present South African law does not recognise any form of domestic partnership outside of marriage.
This means that, unlike in marriage, there is no reciprocal duty of support between partners, and a woman cannot claim maintenance when the relationship ends. She has no claim against the property of her partner, even though she may have contributed to its purchase and upkeep, and no claim against the estate of her partner, should he die without a will.
Although these relationships may last many years, produce children and in all respects function as a marriage, to paraphrase the tagline of a famous quiz-show host, when women leave, they “leave with nothing”. Given that about two million people cohabit, this is a significant gap in the law that must be addressed.
The Bill addresses this lacuna in two ways. First, by providing couples with the right to enter into a registered domestic partnership, and to accept the legal consequences that will flow from such a relationship.
This will include a duty of support between the partners during the existence of the partnership, a limitation on each partner’s right to sell joint property and, significantly for women, a right to occupy the family home.
But while the creation of a registered partnership is an important step to recognising that there are many different forms of family relationships, this will probably not benefit those women who cannot persuade their male partners to marry or register their relationships.
Recognising this, the Bill creates a second form of domestic partnership, namely an unregistered one. A partner in this relationship can apply to the court for maintenance when the relationship ends, for a division of property and for the right to benefit from the estate of a deceased partner.
The court will make its decision based on considerations of equity and fairness and can have regard to a number of factors, including the nature of the relationship and its duration.
Although the enforcement of the legislation is not automatic, but must be exercised through the courts, it will nevertheless represent an important gain for women.
It is, however, a pity that the drafters of the Bill did not include an automatic right of occupation of the family home until alternative accommodation has been found, as is the case with registered partnerships. This would have provided a significant amount of legal protection to women and children who are frequently evicted without anywhere to go.
Liesl Gerntholtz is the director of the Tshwaranang Legal Advocacy Centre
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