Same-sex marriages bill tabled in parliament

By Time of article published Aug 25, 2006

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By Angela Quintal

Proposed legislation on same-sex marriages that has the potential to divide the country and is already the subject of widespread protests will be tabled in parliament in the first week of September.

Moreover, the bill also provides for the recognition of domestic partnerships between adults, whether the same or different sex, who have not concluded a marriage or civil partnership, government spokesperson Themba Maseko said.

This after cabinet approved the Civil Unions Bill on Wednesday.

It is currently with the state law advisers and could be in the parliamentary system as early as September 1.

"Cabinet noted that this bill was likely to generate a lot of public debate but at the end of the day, the decision of the Constitutional Court must be respected by everyone."

The tabling will effectively give parliament three months to process the bill, including public participation, before the Constitutional Court deadline of December 1 for a change to the Marriage Act.

In terms of 2005's Constitutional Court judgment, section 30 (1) of the Marriage Act, the reference to wife or husband in the current marriage formula was unconstitutional, because it excludes same-sex partners.

The court ruled that the omission of the words "or spouse" after the words "or husband" in the Marriage Act was inconsistent with the Constitution as it did not permit same-sex partners to enjoy the same status as heterosexual couples.

The court gave parliament a year to correct the defects, in that the legislature was better placed to decide the best way to achieve the rights of equality in this matter.

If this was not done the Marriage Act would automatically be read as including the words "or spouse", the court ruled.

On Thursday in the national assembly, DA MP Tertius Delport expressed concern that there was not enough time for the bill to be processed in parliament.

He suggested that the minister of home affairs seek an extension of the deadline from the Constitutional Court.

However, Education Minister Naledi Pandor said that given that the bill had been approved by cabinet and would be in the parliamentary system soon, she was sure there would be sufficient time.

Meanwhile, judgment was reserved on Thursday in the Constitutional Court case over the constitutionality of same-sex partners inheriting from their intestate partners.

The case of Mark Gory versus Daniel Gerhardus Kolver and others revolved around a Pretoria High Court ruling earlier in 2006 that a section of the Intestate Succession Act was unconstitutional. The section does not provide for permanent same-sex life partners to inherit automatically on the death of their intestate partners, as a spouse would.

The case arose from the death of Henry Harrison Brooks, who died without leaving a will. Gory was his partner.

Brooks's parents appointed Kolver as executor of the estate and claimed their son's assets as his intestate heirs.

Gory challenged this on the basis of his relationship with Brooks.

The Pretoria court ruled in favour of Gory, saying the exclusion of same-sex life partners from inheritance in such circumstances was unconstitutional.

Kolver applied for leave to appeal against the Pretoria High Court order removing him as executor. This is opposed by Gory, who wants the order to be confirmed as it stands.

Stander said there was also an application to intervene in the matter by Elrida Starke and her three sisters, whose late brother was allegedly a partner in another same-sex life partnership.

The sisters argue that if the order is confirmed, they will be disinherited and any confirmation of the order should not be backdated. Their late brother's partner has argued in favour of the order.

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