After 12 years together, Erasmus Louw and Renier Prinsloo decided to take the plunge and were married last week.
“We made the decision firstly because we love each other but there were also legal concerns,” says Prinsloo. One of the biggest concerns was that despite being partners for 12 years they were not considered next of kin. “If something happened to Renier and he was incapacitated I would have no say. They would still have to ask his parents’ permission,” says Louw.
In December 2006 South Africa became the 14th country in the world to permit gay marriage, under the Civil Union Act. As with any couple living together, having a contract and the rights that it provides offers a great deal of protection.
“We have heard so many horror stories where even wills have been contested by the family. If one of us dies we don’t want someone else to have a claim to our estate,” says Prinsloo.
A further benefit is that should the couple wish to adopt children, they would now be able to adopt as a couple. Previously one partner would adopt and the other would be a legal guardian.
Hilary Dudley, senior manager at international wealth and professional services firm, Maitland, says the Civil Union Act, to all intents and purposes, affords the same rights as does the Marriage Act. The spouses can elect whether to call their union a marriage or a civil union and the reference to “husband”, “wife” or “spouse” applies to a civil union partnership. All common law precedents and judgments that have been made in respect of marriages apply to a civil union.
Once married the couple will have rights to intestate succession (to inherit from one another should a will not be in place), they would be considered the next of kin and should the union dissolve maintenance can be claimed from the spouse. There are also tax benefits such as the spousal exceptions from donations tax and estate duty on assets inherited from the first dying spouse. People who are not formally in a civil union have to prove to Sars that they treat one another as spouses.
Both Louw and Prinsloo say that, from their experience, South African law has been fairly progressive. “We have enjoyed lots of rights so far. I am on Reiner’s medical aid and we have joint house insurance,” says Louw.
The couple could have opted to remain in a common-law universal partnership rather than a civil union. Their personal decision to opt for the union was that it felt like more of a commitment to each other and in the eyes of society.
“We have been together for a long time and have a very good relationship. We are seen as role models within our gay community and we wanted to set an example,” says Louw, who adds that they were effectively married already. “When we meet new people they ask if we are married, now it will be nice to say we are”.
Dudley says a universal partnership is not ideal. Although it may provide certain rights such as belonging to a partner’s medial aid, it is not a formalised union and therefore difficult to prove — you must prove that you comply with the legal requirements for a valid partnership. “A civil union provides you with a piece of paper that proves your intention. It is stated clearly and publicly,” says Dudley.
While a civil union provides the same rights as a marriage, Dudley is concerned that it still discriminates between heterosexual and homosexual relationships. She says that rather than creating a whole new Act, it would have been simpler to allow gay couples to marry under the existing Marriage Act. Currently, a gay couple may only marry under the Civil Union Act while a heterosexual couple may marry under either Act.
“It perpetuates the discrimination by creating a separate institution,” says Dudley, who adds that unlike the forms for a marriage in terms of the Marriage Act, the civil union forms require the partners to be fingerprinted and to submit a photograph.
There have also been reports that home affairs officials treat civil unions differently, for example not cooperating in providing the forms or insisting that civil union forms are for homosexual couples only, although heterosexual couples may elect to marry in terms of the Civil Union Act. In Durban, for example, one has to go to home affairs and not the Magistrates Court to obtain the required forms to officiate over a ceremony, unlike a marriage.
Apart from possible interference by home affairs, the process is like any marriage. In this case the couple were married by a priest and have signed an ante-nuptial contract. Had they not opted for the ante-nuptial contract they would have been married in South Africa’s default matrimonial property regime – in community of property.
Despite the fact that the process is very simple, Prinsloo says it was very difficult get information on how to go about forming a civil union. They were fortunate enough to be introduced to a priest who was familiar with the process.
Although the couple is now afforded rights in South Africa, many countries around the world and especially in Africa do not recognise gay marriage or even ban gay relationships. Hence the couple is concerned about what their rights would be if they were living abroad. Dudley says this is a complicated issue even for heterosexual couples as the various rights would be determined either by the laws of the country where the marriage was celebrated or by the law of the husband’s domicile. It can become more complicated in a gay union as there is no clarity as to who the “husband” is. At least in this case they are both domiciled in South Africa.
Holidaying in a country like Namibia, where gay relationships are banned, there may be complications around the next-of-kin rights should something happen to one of them. “One would have to look at the private international law principles dealing with the conflict of laws, which may pose problems with the recognition of the civil union and associated spousal rights in those countries,” says Dudley.
Despite the prejudice gay couples face both locally and in many parts of the world, Prinsloo and Louw say the reaction to their decision to be married has been very positive. As with any couple, a good, trusting relationship between two people who love each other is always something to celebrate. “Our friends are very proud of us,” says Prinsloo.