Civil Union Divorce in South Africa

Quick answer: civil union divorce in South Africa

A civil union in South Africa may be solemnised as a marriage or civil partnership under the Civil Union Act. If the relationship has legally broken down, the divorce process is dealt with through the ordinary divorce framework, including issues such as children, maintenance, property division and settlement.

For most practical purposes, the key question is not whether the couple is same-sex or opposite-sex, but whether there is a legally recognised civil union or marriage, what property regime applies, whether there are children, and whether the divorce is contested or uncontested.

Civil union divorce route: what should you check first?

• Confirm the legal status: check whether the relationship was registered as a civil union, marriage or civil partnership.
• Check the property regime: identify whether the parties are in community of property, out of community, or subject to an antenuptial contract/accrual arrangement.
• Identify child-related issues: care, contact, guardianship, maintenance and parenting arrangements must be dealt with properly.
• Decide whether it is contested: an agreed divorce follows a very different route from a disputed divorce involving property, children or maintenance.
• Flag cross-border complications: if one spouse lives abroad, or the union/divorce must be recognised overseas, get specific advice before filing.

Official legal sources

The Civil Union Act 17 of 2006 provides for civil unions by way of marriage or civil partnership and regulates their legal consequences. The divorce route is governed by the Divorce Act 70 of 1979. The Constitutional Court judgment in Minister of Home Affairs and Another v Fourie and Another remains the landmark equality decision behind South Africa’s recognition of same-sex marriage.

Divorce is divorce – no matter the type of union

Civil union – In 2006, South Africa became the fifth country in the world and the first in Africa to legalise same-sex marriages. The Civil Union Act of 2006 determined that two people of the same or opposite sex who are older than 18, could marry or enter into a civil partnership.

Although some countries restrict same-sex unions to civil partnerships and forbid marriage, in South Africa couples can choose either option. Simply put, the Civil Union Act allowed people (irrespective of gender) to formalise their relationship and ensure that it had legal recognition even if they did not want to marry.

Recognition of same-sex marriages and civil unions differs internationally. If your marriage, civil union or divorce has to be recognised outside South Africa, get country-specific advice before relying on South African status alone.

Landmark decision – equal rights for civil union same-sex marriages

In a landmark decision in 2005, in the case of the Minister of Home Affairs and Another v Fourie and Another (CCT 60/04), the Constitutional Court ruled that same-sex marriages should be entitled to the same rights, responsibilities and legal consequences as any other marriage or union entered into under the Marriage Act of 1961. Their decision was guided by Section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 which states that you cannot discriminate against same-sex individuals and couples.

Customary marriages too gained full legal recognition, but Muslim (Nikah) and Hindu marriages sadly did not. The underlying message is that religious marriages are somehow inferior and less deserving of legal protection. This infringes people’s rights to dignity, freedom of religion and equality of spouses in religious marriages and children born from those marriages.

However, last year, the Women’s Legal Centre Trust applied to the Western Cape High Court asking it to compel government to recognise Muslim marriages and provide Muslim women and their children with legal protection in the event of divorce. On 31 August 2018 the Court ruled in favour of the applicants and ordered the State to introduce legislation to recognise Muslim marriages as valid, and to regulate the consequences of these unions within 24 months. (Women’s Legal Centre Trust v President of the Republic of South Africa and Others).

Common law marriages where two people (regardless of whether they are of the same or opposite sex) live together but are not married under the Civil Union Act are not regulated by law at all. This leaves the legal status of common law partners uncertain until such time as legislation is promulgated.

Civil unions have the same rights, same responsibilities and same legal consequences

We’ve mentioned that same-sex marriages and civil unions are recognised as partnerships under the law and bear the same rights, responsibilities and legal consequences as marriages under the Marriage Act. The same goes for same-sex and civil union divorces. Same-sex couples seeking a divorce are subject to the same legal processes and have the same right to a share in the assets.

Although the divorce process in South Africa is relatively straightforward, the financial burden can be quite steep, as all marriages, civil partnerships or unions can only be dissolved by the Court.

Consider an antenuptial contract before entering into a civil union

Settlement will be determined by whether you are married in community of property, with or without accrual, or have an antenuptial contract (ANC).  If you are in a civil union and do not draw up an antenuptial contract, your marriage is automatically regarded as being in community of property and the provisions of the Matrimonial Property Act 88 of 1984 will apply.

It’s generally a good idea to draw up an ANC that sets out how you will divide your assets if you ever get divorced. Granted this is not an easy or comfortable topic to discuss when you’re planning on living happily ever after, but it does make it easier if you ever need it.  Read more about ANCs here.

There is no doubt that divorce is one of the most stressful events that we can experience. Whether it is a same-sex or opposite-sex marriage or civil union, the breakdown of a life partnership is hard and painful.

Civil union divorce – We can help

If you need legal advice about a civil union divorce, Simon Dippenaar & Associates can assist with divorce and family-law strategy, including property, children, maintenance and settlement where a civil union or marriage has broken down. Contact SD Law or call 086 099 5146 for advice.

Simon Dippenaar

Founder & Managing Partner, SD Law

Attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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