SAME SEX RELATIONSHIP: WHERE DO WE GO FROM HERE? – BY LUNGA MANI

Monday, June 28, 2004
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It is almost five years since a judgment was handed down which gave some relief to couples involved in same sex relationships. That judgment abolished the criminal offence of sodomy. Ten years after democracy we look at whether same sex relationships are treated equally and with the same dignity as opposite sex relationships.
 
PRE-CONSTITUTIONAL ERA
During the pre-constitutional era, same sex relationships were regarded as “abnormal” and people involved in them were not welcome in their communities. They were regarded as outcasts and unworthy in law of the rights afforded to same sex couples. They were denied their only form of sexual expression by creating an offence of sodomy. Professor Cameron in his article, Sexual Orientation and the Constitution: a test case for human rights, says that gays were reduced to unapprehended felons and that entrenched the stigma and encouraged discrimination in employment and insurance.
 
CONSTITUTIONAL ERA     
A major achievement towards the recognition of gay and lesbian rights came with the case of The National Coalition of Gays and Lesbians Equality v Minister of Home Affairs and other. The court was faced with a provision of the Aliens Control Act which permitted immigration into South Africa only for the spouses of permanent South African residents, but did not afford the same benefits for couples in permanent same sex life partnerships with South African residents.
 
The court pointed out that there is another form of life partnership which is different from a marriage as recognised by the law. The court went on to say that gay and lesbian couples were as perfectly capable of expressing and sharing love as heterosexual couples, and that gays and lesbians were capable of constituting a family and enjoying and benefiting from family life which is not distinguishable in any significant respect to that of heterosexual spouses. In trying to accommodate gays and lesbians who were committed in permanent relationships, the court came up with a phrase “permanent same sex life partnerships.”  The court acknowledged the fact that gays and lesbians, by law could not marry but they needed some form of protection against discrimination.
 
Marriage is defined as a voluntary union between a man and a woman to the exclusion of all others. A number of benefits and obligations follow marriage, for example, a reciprocal duty of maintenance and testate and intestate succession.
 
The inclusion of the phrase, “permanent same sex life partners,” in some Acts has helped to do away with discrimination in employment, insurance, and indirectly in society at large. Communities therefore seem to be ready for a change for the best as far as rights for gay and lesbian couples are concerned. Foundations have been laid to afford some rights and obligations that follow marriage:
·         same sex couples can jointly adopt children
·         they can be beneficiaries in each other pension funds
·         they can be dependants in each others medical aid schemes
 
A major move towards the full recognition of gay and lesbian rights came with the setting up of the South African Law Reform Commission in 2003 to look at the issue of the protection of couples involved in domestic partnerships, both heterosexuals and homosexuals. The recommendations made by the commission were made public and open for discussion in December 2003.
 
Some of the recommendations contained therein were to the effect that the common law definition of marriage should be widened so as to include same sex couples, and that the definition of marriage, which, currently, is not included in the Marriage Act, be inserted to read as follows:
“Marriage means the voluntary union of two persons concluded in terms of this Act to the exclusion of any other marriage, union or partnership.”
And spouse be defined to mean:
            “a partner of a person in a valid marriage.”
 
This would have the effect that marriage could be concluded by people involved both in opposite sex relationships and same sex relationships. This would also afford same sex couples all the rights and obligations currently enjoyed by opposite sex couples including those which follow divorce.
 
It is also proposed that the civil marriage, which deals with the legal aspect of marriage, and the religious marriage be separated from each other. This would mean that couples who value religious marriage could, after signing a marriage contract before a marriage officer, have their marriage blessed before a religious officer in a religious ceremony. Civil marriages, on the other hand would be regulated by the state.
 
With these recommendations being deliberated upon, it would seem as if the dawn of a new era for gay and lesbian couples, characterised by respect, dignity and equality, has come into being.