What is a civil union in South Africa?
A civil union is a legally registered union of two people who are both 18 or older under the Civil Union Act 17 of 2006. The couple chooses whether the union will be known as a marriage or a civil partnership. Both same-sex and opposite-sex couples may enter a civil union.
The term civil union is therefore the legal umbrella. Marriage and civil partnership are the two descriptions available when the union is solemnised and registered. A civil union is not the same as living together without registering a marriage or civil partnership.
Civil union, marriage and civil partnership: the difference
| Term | What it means in South Africa |
|---|---|
| Civil union | The registered legal relationship created under the Civil Union Act. |
| Marriage under the Civil Union Act | One of the two descriptions the couple may choose for their civil union. |
| Civil partnership | The other description available under the Act. It carries the legal consequences that section 13 applies to a civil union. |
| Life partnership or cohabitation | A relationship in which the couple lives together without registering a civil union or marriage. Rights may arise from agreements, statutes or case law, but cohabitation does not by itself create a civil union. |
What legal consequences does a civil union have?
Section 13 of the Civil Union Act applies the legal consequences of a marriage under the Marriage Act to a civil union, with the changes required by the context. This affects matters such as matrimonial property, succession and the status of the partners as spouses. The practical result in a particular case still depends on the couple’s registration, antenuptial contract, property regime and other facts.
A person may be a spouse or partner in only one marriage or civil partnership at a time. A previous marriage or civil union must have ended before another can be registered.
How is a civil union ended?
A civil union is not cancelled administratively at Home Affairs. It is dissolved through a court divorce process under the Divorce Act 70 of 1979. The court must have jurisdiction, and the divorce must deal with the issues that apply to the couple, which may include property, maintenance, pension interests and arrangements for children.
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.
Cohabitation is different from a registered civil union. A life partnership may have legal consequences under an agreement, a statute or developing case law, but living together does not by itself create a civil union. See our cohabitation and common-law marriage guide.
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. Civil-union partners use the ordinary divorce process. Property division is determined by the applicable matrimonial-property regime, any valid antenuptial contract and the facts of the case; it is not an automatic equal-share rule in every divorce.
A registered civil union is dissolved by a competent court under the Divorce Act. The cost and complexity depend on whether the matter is agreed or contested and on the property, maintenance, pension and child-related issues involved.
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 questions
Is a civil union the same as a marriage?
A civil union is the legal relationship created under the Civil Union Act. When it is registered, the couple chooses whether it will be known as a marriage or a civil partnership. Section 13 gives a civil union the legal consequences of marriage, with the changes required by the context.
Can an opposite-sex couple enter a civil union?
Yes. The Civil Union Act’s definition is not limited to same-sex couples. Two eligible people aged 18 or older may enter a civil union under the Act.
Is a civil union automatically in community of property?
A civil union will ordinarily be in community of property if the partners do not conclude a valid antenuptial contract before it is registered. The actual position should be checked against the registration documents, any antenuptial contract and any cross-border facts.
Can a civil union be cancelled at Home Affairs?
No. A civil union is dissolved by a court through the divorce process. Home Affairs records the union, but it does not replace the required court divorce order.
Is living together a civil union?
No. Cohabitation or a life partnership does not become a civil union merely because the couple has lived together for a long time. The civil union must be solemnised and registered under the Act.
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.
Read articlesThe information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.