Civil Union & Civil Marriage; what they are and is there a difference?
There are three types of marriage in South Africa: Civil Marriage, Civil Union & Customary Marriage. This article will deal with the first two. Customary marriages are not handled by Marriage Officers but rather Home Affairs and are regulated by the Customary Marriages Act.
Below I will explain what Civil Marriages and Civil Unions are but the most important point from all of the below is this: There is no difference in law between the two. Both enjoy all the rights, protections and consequences of marriage.
Civil Marriage: This is the most common form of marriage in South Africa. Any marriage solemnised under the Marriage Act of 1961 is referred to as a civil marriage. When thinking of marriage in its most traditional form you are thinking of a civil marriage and is only between a man and a woman.
Civil Union: Any marriage solemnised under the Civil Union Act of 2006 is a Civil Union. The primary function of this Act was to formalise same-sex weddings. Civil Unions are often referred to as “same-sex” unions. This is a misnomer as the act defines a civil union as “a voluntary union between two persons of the same sex or of opposite sexes, older than the age of 18, solemnised and registered either by way of marriage or civil partnership.” This means that heterosexual couples may also be married under the Civil Union Act.
Why two laws for the same thing?
Under the South African constitution same-sex marriages are protected. South African law had to reflect this and make provision for it. The original intention of Home Affairs was to amend or re-write the existing marriage act. However, there was fierce objection, mostly from religious communities who oppose same-sex marriage and who also feared they would be forced to solemnise same-sex weddings over their objections. It was far easier then to simply write a new law to cover it.
The consequence of the above for Marriage Officers is that those who wish to solemnise same-sex marriages have to register for it. Those that object or do not wish to simply carry on as they are under the marriage act.
Ideally there should just be one law covering both. At this writing Home Affairs are the process of doing just that. It is their intention to bring all forms of marriage under one law and one process. This is very good news as the current arrangement has created confusion.
And, finally, to repeat: This is no difference in law between Civil Marriage and Civil Union. Whether same-sex or not both are regarded as a Marriage with the full extent what this means under the law being applicable to both.
In a civil marriage only the bride has the option of changing or keeping her surname. With a civil union both of a couple have the option. This means that under a civil union a groom could take his wife’s name. This is a rare choice but the number of times this happens is growing.
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