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[2010] ZAWCHC 224
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Steyn v Steyn (6427/2010) [2010] ZAWCHC 224 (27 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 6427/2010
In
the matter between:
ANGELIQUE
JANE STEYN
…....................................................................................
Plaintiff
and
CHANTAL
SHEREE STEYN
…...............................................................................
Defendant'
JUDGE
P.A.L.
Gamble
FOR
THE PLAINTIFF Adv. Pierre Rabie
INSTRUCTED
BY Hannes Pretorius, Bock and Isaacs c/o 59 Visagie Vos &
Partners
FOR
THE DEFENDANT Not represented
INSTRUCTED
BY:
DATES
OF HEARING 7 July 2010
REASONS
DELIVERED 27 October 2010
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 6427/2010
In
the matter between:
ANGELIQUE
JANE STEYN
…....................................................................................
Plaintiff
and
CHANTAL
SHEREE STEYN
…...............................................................................
Defendant'
REASONS: 27 OCTOBER
2010
GAMBLE, J:
INTRODUCTION
[1]
This matter came before me as an unopposed divorce in the Motion
Court
on 7 July 2010. After hearing the evidence of the Plaintiff and
argument by her counsel, I granted an order of divorce incorporating
the terms of the Settlement Agreement concluded between the parties
on 7 July 2010. I undertook to file reasons for my order. Those
reasons are set out hereunder.
[2]
The plaintiff testified that in March 2005 she resided in
Johannesburg. She then left South Africa to work and reside in the
United Kingdom: as the holder of a British passport she was permitted
to do so. The Plaintiff said that it had always been her
intention to
return to South Africa and that the reason for taking up employment
in the United Kingdom was to earn money in a foreign
currency.
[3]
The Plaintiff knew the Defendant before she left South Africa and
they travelled to England together where they co-habited.
On 9 August
2006 the parties entered into a civil partnership at the West Surrey
Register Office in Guildford outside London. This
partnership was
validated by a certificate issued under the Civil Partnership Act
2004, the legislation in the United Kingdom which
governs registered
same-sex partnerships.
[4]
The Plaintiff testified that her relationship with the Defendant
soured and they separated in 2007. As the Plaintiff put it,
"she
was more interested in my British passport than me."
The
Plaintiff returned to Johannesburg in 2009 and then relocated to
Gordon's Bay in the Western Cape which she now considers to
be her
permanent home.
[5]
According to the Plaintiff, the Defendant too returned to South
Africa and she currently resides in Kempton Park, Gauteng. At
that
stage the parties' relationship had clearly broken down
irretrievably.
[6]
On 30 March 2010 the Plaintiff issued summons out of this Court and
made the following allegation in her particulars of claim:
"On
9 August 2006 and at Artington House, Guildford, England, the parties
were married in community of property and the marriage
still
subsists."
[7]
The relief sought includes prayers for a decree of divorce and
division of the joint estate.
[8]
The summons was duly served on the Defendant who did not oppose the
action.
[9]
When the matter came before the Motion Court on 1 June 2010, Justice
Binns-Ward raised certain queries regarding this Court's
jurisdiction
to grant a decree of divorce in respect of a same-sex marriage, (or
similar union) solemnised in a foreign jurisdiction.
The matter was
adjourned to enable counsel to consider the legal position.
[10]
At the hearing before me Mr. Rabie, for the Plaintiff, produced a
useful memorandum which has facilitated the preparation of
this
judgment. I am indebted to counsel for his assistance in this regard.
[11]
Before considering this court's jurisdiction to dissolve foreign
same-sex relationships it is apposite, first, to have regard
to its
jurisdiction in respect of the dissolution of same-sex partnerships
concluded locally.
THE
CIVIL UNION ACT NO. 17 OF 2006
[12]
The Civil Union Act No. 17 of 2006 ("the Act") is a piece
of legislation which has its genesis in various sections
of the
Constitution of the Republic of South Africa, 1996. It follows upon
the decision in
Minister
of Home Affairs and Another v Fourie and Another
1
in
which the Constitutional Court held that:
12.1.
the common law definition of marriage was inconsistent with the
Constitution in that it deprived same-sex couples of the
status,
benefits and responsibilities which the institution of marriage
accorded to heterosexual couples;
12.2.
the provisions of Section 30(1) of the Marriage Act, 25 of 1961 were
pari
passu
inconsistent
with the Constitution; and
12.3.
Parliament was to address these defects within twelve months,
failing which certain words were to be read into Section 30(1)
of
the Marriage Act.
[13]
The Legislature was required to respond to the Constitutional
Court's directive by 1 December 2006. It left matters rather
late
and the first draft of the relevant Bill was only considered by
Parliament in September 2006. Substantial changes were effected
to
the first draft and the second draft was ultimately adopted by
Parliament in November 2006 before it came into operation on
the
30
th
of
that month. Significantly,
Parliament
did not amend the Marriage Act but sought to comply with the
Constitutional Court's directions in the
Fourie
case
by passing a separate Act. The resultant legislation has not
achieved universal acclaim in South Africa and, as will be seen
hereunder, unfortunately has the watermark of rushed legislation.
[14]
There are to date no cases (either reported or unreported) in which
the Act has been considered. It has however attracted
comment from
many quarters and has been criticised in a number of academic
articles.
2
[15]
As
de
Vos and Barnard
point
out in their article in the South African Law Journal
(
supra
),
the
principle aim of the Act was to address same-sex relationships and
to afford them the same status as heterosexual relationships.
Yet,
they argue that the Legislature failed to achieve this and has
created confusion in its attempts to categorise long-term
relationships entered into between same-sex adults on the basis of
love and commitment, to the exclusion of all others, for so
long as
they last.
[16]
The preamble to the Act refers to Sections 9(l)(equality), 9(3)
(unfair discrimination), 10(l)(dignity) and 15(l)(freedom
of
conscience, religion, thought, belief and opinion) of the
Constitution and notes that:
"the
family law dispensation as it existed after the commencement of the
Constitution did not provide for same-sex couples
to enjoy the
status and the benefits coupled with the responsibilities that
marriage accords to opposite-sex couples."
[17]
In Section 1 of the Act a
"civil
union"
is
defined as:
"...the
voluntary union of two persons who are both eighteen years of age or
older, which is solemnised 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..."
[18]
Curiously the phrase "civil partnership" is not defined in
the Act, but it will be noted that the definition of
a civil union
does not limit its ambit to same-sex couples.
[19]
The objectives of the Act are said, in Section 2 thereof, to address
both the solemnisation and registration of civil unions
and the
legal consequences thereof
[20]
Sections 4 to 12 of the Act then deal with a variety of procedural
and related issues, including the solemnisation and registration
of
civil unions. Importantly, in terms of Section 8 of the Act a person
may only be a spouse/partner in one civil union, and
may not
conclude either a marriage under the Marriage Act while being a
partner in a civil union, or register a civil union while
still
being married under the Marriage Act.
[21]
If a person wishing to enter into a civil partnership under the Act
was previously married under the Marriage Act s/he must
produce
proof of dissolution of that marriage either through a divorce order
or a death certificate of the other spouse. (Section
8(4)).
[22]
Section 13 of The Act determines the legal consequences of a civil
union as follows:
"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."
[23]
Consequently, a civil union concluded in accordance with the
provisions of the Act is intended to have all the ordinary
consequences of a marriage otherwise concluded under the Marriage
Act or Customary Marriages Act, save that it is not to be regarded
as, or termed, a marriage under either of those Acts. So, for
example, the reciprocal duty of support which spouses owe each
other
at common law would apply equally to same-sex partners to a civil
union.
A
MARRIAGE PROPERLY SO CALLED?
[24]
Somewhat paradoxically, the parties are given the choice under
Sections 11(1) and (2) of the Act to choose whether to call
their
relationship a marriage or a civil partnership:
"11.
Formula
for solemnisation of marriage or civil partnership
1.
A marriage officer must enquire from the parties appearing before
him or her whether their civil union should be known as a
marriage
or a civil partnership and must thereupon proceed by solemnising the
civil union in accordance with the provisions of
this section.
2.
In solemnising any civil union, the marriage officer must put the
following questions to each of the parties separately, and
each of
the parties must reply thereto in the affirmative:
"Do
you, A.B., declare that as far as you know there is no lawful
impediment to your proposed marriage/civil partnership
with CD. here
present, and that you call all here present to witness that you take
CD. as your lawful spouse/civil partner?",
and thereupon the
parties must give each other the right hand and the marriage officer
concerned must declare the marriage or
civil partnership, as the
case may be, solemnised in the following words:
'7
declare
that A.B. and CD. here present have been lawfully joined in a
marriage/civil partnership. ""
[25]
The paradox is that, firstly, the phrase "civil partnership"
is not defined in an act which deals with civil unions,
and,
further, the word "marriage" is intended to refer to a
state of matrimony which may not constitute a marriage
under the
Marriage Act notwithstanding the fact that the civil union is
concluded before a marriage officer appointed under that
Act.
Nevertheless, the Legislature has determined that a civil union may
be called either a civil partnership or a marriage:
it is left up to
the parties to decide on the preferred nomenclature.
[26]
Despite the preamble, in which the Legislature commits itself to
addressing the plight of same-sex couples, it appears that
the Act
contemplates the recognition of the following long term domestic
cohabitation arrangements in South Africa:
(i)
A
marriage under the Marriage Act. This must
per
force
be
a heterosexual relationship.
(ii)
A
marriage under the Customary Marriages Act which
would usually
also involve heterosexual persons;
(iii)
A
marriage under the Act which can be between persons of
either the
same or opposite sexes; and
(iv)
A
civil partnership under the Act which can similarly be
between
persons of either the same or opposite sexes.
[27]
Just why a heterosexual couple who are able to conclude a valid
marriage under the Marriage Act, would chose to conclude
a marriage
under the
Civil Union Act is
not clear. Regrettably, it seems that
inherent in Parliament's response to the
Fourie
case
is the perpetuation of "otherness", or as some of the
commentators referred to above point out, a retreat to the
"separate
but equal" philosophy which was a hallmark of the apartheid
era.
DISSOLUTION
OF A CIVIL UNION CONCLUDED UNDER THE ACT
[28]
Marriages under the Marriage Act are dissolved either by the death
of one of the spouses or by a divorce action initiated
under the
Divorce Act, 1979
. But what of a marriage or civil partnership
concluded under the Act? In light of the provisions of Section 8 to
which I have
referred above, it is imperative that a civil union be
capable of lawful termination other than through the death of one of
the
partners in circumstances where it has broken down
irretrievably.
[29]
The Act itself contains no provisions which govern the dissolution
of a civil union. The rationale behind this obvious omission
is that
the Legislature intended that the provisions of Section 13(2)(a) of
the Act should incorporate the relevant provisions
of the
Divorce
Act as
the applicable statute for dissolving such partnerships. In
this regard it will be noted that Section 13(2)(a) of the Act
specifically
incorporates areference to the word marriage in "any
other law" as being a reference, also, to a civil union.
[30]
Because the
Divorce Act is
regarded as "other law" for
purposes of the application of Section 13(2)(a) of the Act, any
reference in the
Divorce Act to
"marriage" will apply
pari
passu
to
both a marriage and a civil union concluded under the Act. The
Divorce Act is
then the appropriate procedural mechanism for the
dissolution of either a marriage under the Marriage Act, a marriage
under the
Act or a civil partnership under the Act.
[31]
That procedure is prescribed in the
Divorce Act in
the following
circumstances:
"3.
Dissolution
of marriage and arounds of divorce
A
marriage may be dissolved by a court by a decree of divorce and the
only grounds on which a decree may be granted are -
(a)
The irretrievable break-down of the marriage as contemplated in
Section 4
;
(b)
The mental illness or the continuous unconsciousness, as
contemplated in
Section 5
, of a party to the marriage."
[32]
I conclude therefore that a same-sex marriage or same-sex civil
partnership concluded under the Act is capable of dissolution
under
Section 3
of the
Divorce Act. Similarly
, given the extension of the
meaning of "husband, wife or spouse" in Section 13(2)(b)
of the Act to civil union partners,
any ancillary or
pendente
lite
relief
contemplated under the
Divorce Act must
be available to the same-sex
partners to either such a marriage or civil partnership. This would
include orders for maintenance
under
Section 7(2)
of the
Divorce Act
and
relief under Rule 43 of the Uniform Rules.
[33]
Notwithstanding the obvious short-comings in the Act, I consider
that it is correct to say that the present state of our
law then is
that a same-sex union concluded under the Act is fully cognizable as
a marriage, whether the partners thereto choose
to call it a
marriage or a civil partnership, and that such union is capable of
dissolution under the
Divorce Act.
FOREIGN
SAME-SEX PARTNERSHIPS
[34]
What then is the status in South Africa of a same-sex
marriage/partnership concluded outside of the Republic? In terms of
our common law the validity of a foreign marriage is determined by
application of the principle of
lex
loci celebrationis.
3
Accordingly,
if the marriage is duly concluded in accordance with the legal
requirements for a valid marriage in that foreign
country, it will
be recognised by a local Court which will be entitled to exercise
its powers under the
Divorce Act
provided
that the ordinary residential jurisdictional requirements under
Section 2
of the
Divorce Act have
otherwise been met. Indeed, this
happens regularly in this Division where persons married in say
England, Australia, Namibia
or Zimbabwe and resident in South Africa
are granted decrees of divorce from time to time.
[35]
As noted above, in the United Kingdom same-sex partnerships are
regulated by the Civil Partnership Act 2004 ("the English
Act"). This statute is a formidable piece of legislation which
consists of some 490 pages
4
.
It has 264 sections with 30 schedules, with many of the schedules
being made up of 5 or more parts. The Act itself and the schedules
thereto deal individually with civil partnerships concluded in
England and Wales, Scotland, Northern Ireland and abroad. Different
provisions are made in respect of
inter
alia
registration,
dissolution, property and financial arrangements, children and
ancillary relief in respect of each of the aforesaid
geographical
areas. For present purposes it is only necessary to have regard to
Part 1 (Sections 1(1)-1(5) Part 2 (Sections 2-84)
and Schedules 1-9
of the English Act. The latter relate exclusively to England and
Wales, while Part 1 is a clause of general
application.
[36]
At the outset it must be said that in certain respects the English
Act has many points of coincidence with the Act, while
in other
respects it is far more extensive and detailed. For purposes of this
judgment the following aspects are relevant:
36.1.
An English civil partnership is reserved exclusively for same-sex
partners (Section 1(1)).
36.2.
It terminates only on death, dissolution or annulment (Section
1(3)).
36.3
It is subject to official registration (Section 2) and the
conclusion of a separate civil partnership document (Section 7).
36.4
No religious service may be used when the civil partnership
registrar is officiating at the signing of a civil partnership
document (Section 2(5)).
36.5
The partners to such a partnership must be of the same sex, must be
older than 16 years, may not already be civil partners
or legally
married, and must not be within prohibited degrees of relationship
(Section 3).
36.6.
The proposed civil partnership is publicly advertised and is subject
to a 15 day waiting period (Sections 8, 10 and 11)).
36.7.
The Chancellor of the Exchequer (i.e. The Minister of Finance) is
given the power (subject to the approval of Parliament)
to make
amendments to the Act
"for
the purpose of assimilating any provision connected with the
formation or recording of civil partnerships in England
and Wales to
any provision made
....
in relation to civil marriage in England and Wales."
(Section
35(l)(a)).
36.8.
Civil marriage"
is
defined as a
"marriage
solemnised otherwise than according to the rites of the Church of
England or any other religious usages."
(Section
35(2)).
36.9.
The High Court (or a County Court with appropriate family
court
jurisdiction) has the power to,
inter
alia -
36.9.1.
grant a dissolution order in respect of a civil partnership on the
grounds of irretrievable breakdown (Section 37(l)(a);
36.9.2.
grant an order of nullity; (Section 37(l)(d)); or
36.9.3.
make a separation order in respect of civil partners (Section
37(l)(d)).
36.10.
Before a court may grant any order of dissolution, nullity or
separation it must have regard to the interests of children
in the
family (Section 63).
36.11.
There are also extensive provisions for care and contact,
guardianship, residency and financial support for such children
(Sections 75-78).
36.12.
The rules in the law of evidence as to the non-compellability of
spouses to testify against each other are preserved (Section
84).
[37]
In the circumstances I am of the view that a civil partnership
concluded under the English Act has all the hallmarks of a
marriage
save that it may not be termed so under that Act. Of particular
significance is the power of the Chancellor of the Exchequer
referred to in para 36.7 above to make the necessary amendments to
the English Act so as to assimilate a civil partnership with
a civil
marriage.
[38]
The English Act also makes provision for the recognition of foreign
same-sex civil partnerships which are lawfully concluded
in that
other country, subject to certain "general conditions" and
public policy considerations (Sections 212-218).
[39]
These "general conditions" are worth mentioning in detail:
"214.
The general conditions are that, under the relevant [foreign] law -
a)
The relationships may not be entered into if either of the parties
is already a party to a relationship of that kind or lawfully
married,
b)
The relationship is of indeterminate duration, and
c)
The effect of entering into it is that the parties are -
(i)
treated
as a couple generally or for specified purposes, or
(ii)
treated
as married."
[40]
In terms of Chapter 3 of Part 5 of the English Act (Sections
219-224) the Family Courts in England and Wales have (or will
assume) jurisdiction to grant orders of dissolution, separation or
nullity in respect of recognised foreign same-sex partners
and will
also grant them ancillary relief.
[41]
In the instant case, the parties' civil partnership is legally
recognised in England and while it may not be called one in
that
country, it has all the hallmarks of a marriage between persons of
the opposite sex. Most importantly, in England their
civil
partnership can only be dissolved by death or by an order of Court.
Furthermore, having entered into such a partnership
they may not
enter into another civil partnership (or a heterosexual marriage)
until such time as their civil partnership has
been dissolved. I am
therefore of the view that the parties' English civil partnership,
having been lawfully concluded in that
country, should be accepted
as a valid and binding civil partnership in the Republic in
accordance with the
lex
loci celebrationis
principle,
provided only that it does not otherwise offend South African public
policy.
5
[42]
Furthermore, in light of the constitutionality of permanent same-sex
relationships in our law, there can be no suggestion
of legal
repugnancy of an English same-sex civil partnership, or that it is
contra
bonos mores.
DISSOLUTION
OF CIVIL UNION CONCLUDED ELSEWHERE
[43]
Our Courts are now required to interpret the provisions of the
Constitution and other legislative instruments purposively
and with
due regard to the constitutional context in which they are set
6
.
This is particularly important in attempting to strike a clean break
with past practices which were born out of discrimination
and
prejudice.
[44]
I have shown above that the
Divorce Act is
the statute in terms of
which South Africans who are spouses/partners to a marriage or civil
union concluded in South Africa
(regardless of whether their
relationship is same-sex or heterosexual) must dissolve that
relationship. That Act is also available
to heterosexual couples who
were lawfully married outside of the Republic of South Africa and
who now wish to become divorced
from each other while residing in
this country.
[45]
To exclude from that category of prospective divorcees, partners who
have concluded a lawful and enforceable same-sex civil
union outside
of South Africa, would only entrench and perpetuate the
discrimination to which gay men and lesbians have been
subjected in
the past. All the more so where the partners to that civil union are
South African citizens who may have exchanged
their vows outside of
the Republic by force of circumstance, or because they chose to
travel to some exotic location to celebrate
such an important event
in their lives. Since it is axiomatic thatcitizens of this country
should have access to local courts
to resolve their disputes, there
is no reason why there would be any restriction in respect of family
law disputes.
[46]
In the present case, were the Court not to apply a purposive
interpretation of the
Divorce Act (and
in particular the word
"marriage" therein) so as to accommodate duly concluded
foreign same-sex unions, South African
partners to a lawful English
same-sex union would have to travel to the United Kingdom and file
for dissolution in a Family Court
there, provided of course that
they are able to otherwise meet that Court's jurisdictional
requirements in relation to residency.
The perversity of this
requirement is only exacerbated when one has two parties who are in
agreement as to the terms and conditions
of the dissolution of their
relationship and where neither of them is evidently financially
well-off and readily able to bear
the costs of such an excursion.
This would simply add insult to injury.
[47]
A purposive interpretation of the word "marriage" in the
Divorce Act is
aimed at giving a word in a pre-constitutional
statute a meaning which accords with the prescripts of Section 39(2)
of the Constitution
-
"39(2)
when
interpreting any legislation every Court .... must promote the
spirit, purport, and objects of the Bill of Rights. "
[48]
To restrictively interpret the word "marriage" so as to
exclude legally recognized foreign same-sex relationships,
while
allowing it to apply to lawful foreign marriages and lawful South
African same-sex marriages or civil partnerships, would
offend
against the fundamental rights referred to in the preamble to the
Act (as set out in para 16 above), as also the provisions
of Section
34 of the Constitution which guarantee access to our Courts.
[49]
In
Govender
v Minister of Safety and Security
7
Olivier
JA set out the approach to be adopted in the interpretation of
statutory provisions under the Constitution.
"This
requires magistrates and judges:
(a)
to examine the objects and purport of the Act or the section under
consideration;
(b)
to examine the ambit and meaning of the rights protected by the
Constitution;
(c)
to ascertain whether it is reasonably possible to interpret the Act
or section under consideration in such a manner that it
conforms
with the Constitution i.e. by protecting the rights therein
protected;
(d)
if such interpretation is possible, to give effect to it, and
(e)
if it is not possible, to initiate steps leading to a declaration of
Constitutional invalidity".
The
approach in
Govender
was
endorsed by the Constitutional Court in Ex
parte
Minister of Safety and Security and Others
:
In
re: S v Walters and Another
8
.
[50]
Accordingly, if the word "marriage" in
Section 3
of the
Divorce Act is
read so as to include a reference to a lawful,
registered same-sex union which has all the hallmarks of a
heterosexual marriage
under the common law, save that it is not
called a marriage, such a reading would protect and advance the
relevant fundamental
rights in the Constitution to which reference
has been made above. Given that the purpose of the
Divorce Act is
to
provide a statutory mechanism for the dissolution of marriages, and
further given that locally concluded and registered same-sex
unions
are capable of dissolution thereunder, there does not appear to be
any basis for distinguishing and excluding similar
unions concluded
outside of the Republic.
[51]
I am therefore of the view that the word "marriage" in
Section 3
of the
Divorce Act must
be read so as to include
registered foreign same-sex marriages or civil unions/partnerships
which are lawful in the country in
which they are concluded.
[52]
The parties are, in my view, therefore entitled to assert in a South
African court that they are lawfully "married"
for
purposes of the application of the
Divorce Act and
to request our
courts to dissolve their civil partnership in accordance with the
provisions of
Section 3
of the
Divorce Act. For
purposes of pleading
though I think it would be preferable to describe the relationship
with reference to the relevant statute
under which it is concluded
and to give it the name designated by such statute, or, in the case
of a civil union concluded under
the Act, the description thereof
which the parties have been chosen under Section 11(1).
MATRIMONIAL
PROPERTY REGIME
[53]
As pointed out above, the Plaintiff alleged in her particulars of
claim that the parties were married in community of property
in
England. They did not conclude any pre-nuptial agreement and
accordingly the default position in that country would ordinarily
apply
viz
that
the parties would be married out of community of property.
[54]
The allegation in the particulars of claim that the parties were
married in community of property seems to be based on the
fact that
at the time that they were married, the Plaintiff was still
domiciled in the Republic, and had not formed the necessary
animus
non revertendi.
It
is not clear from the Plaintiff's evidence what the Defendant's
domicile was at the time that the parties entered into the
civil
union, but, judging from her subsequent return to South Africa, it
is fair to infer that she too had probably not formed
an
animus
non revertendi.
[55]
Under the common law the matrimonial property regime of a foreign
marriage is to be determined according to the law applicable
in the
husband's country of domicile at the time of the marriage, the
so-called
lex
domicilii matrimonii.
9
Of
course, that principle is incapable of application in same-sex
marriages. Further, it is likely to fall foul of the equality
provisions entrenched in Section 9 of the Constitution.
10
[56]
It is for the Legislature to address the position in relation to
same-sex marriages/unions concluded by South Africans abroad,
in
order that there can be legal certainty as to which property regime
is applicable to the parties marriage or civil partnership.
There
does not appear to be any problem in regard to such a relationship
concluded locally since the common law position (to
be regarded as
"any other law" in terms of Section 13(2)(a) of the Act)
of community of property would apply in the
absence of an ante
nuptial contract.
[57]
To the extent that the parties
in
casu
resolved
the proprietary consequences of their relationship by concluding a
written deed of settlement, it was not necessary to
make any
determination on the applicable proprietary regime. However,
practitioners would be advised to plead the applicable
regime with
the necessary degree of accuracy in order that a court may properly
adjudicate the proprietary claims before it.
P.A.L.
GAMBLE
1
2006
(1) SA 523
(CC)
2
Elsje
Bonthuys
,,
Race and Gender in the
Civil Union Act (2007
) SAJHR 526;
Elsje
Bo
nthuys.
Possibilities Foreclosed: The
Civil Union Act and
Lesbian and Gay
Identity in Southern Africa, Sexualities 2008 11: 726
(
http://sex.sagepub.eom/content/11/6/726
http://sex.sagepub.eom/content/11/6/726
http://sex.sagepub.eom/content/11/6/726
http://sex.sagepub.eom/content/11/6/726
);
Pierre
de Vos
.
The "Inevitability" of Same-sex Marriage in South Africa's
Post-Apartheid State,
(2007) SAJHR 432
;
Pierre
de Vos and Jaco Barnard
.
Same-sex Marriage, Civil Unions and Domestic Partnerships in South
Africa: Critical Reflections on an Ongoing Saga (2007) 124
SAU 795;
Bradley
Smith and J,A. Robinson
,
the South African
Civil Union Act 17 of 2006
: A Good Example of the
Dangers of Rushing the Legislative Process vol 22 (2008) BYU Journal
of Public Law 419.
3
LAWSA
(2
nd
Ed)
Vol
2
Part 2
p26 para 307;
Ngqobela
v Sihele
(1893)
10 SC 346
at 352; Seed
at's
Executors v The Master (Natal)
1917
AD 302
at 307;
Pretorius
v Pretorius
1948
(4) SA 144
(O at 147-9;
Forsyth
Private
International Law pp 243-5.
4
“
It
is accessible at
http://www.opsi.gov.uk/acts2004/pdf/ukpg
http://www.opsi.gov.uk/acts2004/pdf/ukpg
http://www.opsi.gov.uk/acts2004/pdf/ukpg
http://www.opsi.gov.uk/acts2004/pdf/ukpg
20040033_en.pdf
5
LAWSA
op cit 310 para 293
6
Du
Plessis v De Klerk
[1996] ZACC 10
;
1996
(3) SA 850
(CC) at 910 D-E para 123;
Executive
Council of the Western Cape v Minister of Provincial Affairs and
Constitutional Development
[1999] ZACC 13
;
2000
(1) SA 661
(CC) at 686 G-H
7
'
2001 (4) SA 273
(SCA) t p 280 H para 11.
8
[2002] ZACC 6
;
2002
(4) SA 613
(CC)
9
'
Sperling
v Sperling
1975
(3) SA 707(A)
10
LAWSA
op.cit. p328 para 309