Same-sex Divorces in Cape Town South Africa – How does Lesbian and Gay Spouses get Divorced?

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Gay and Lesbian (Same-sex) Divorces in South Africa – How does it work?

advice-child-maintenance-child-custody-divorceAs with any marriage, relationship or romantic partnership, there is no guarantee that it will last until death do you part. For a marriage, a divorce is what is needed if the marriage has irretrievably broken down. Much has been written on the issue of divorces in relation to heterosexual marriages where the Marriage Act find application. The same applies to customary marriages. What about same-sex, or gay and lesbian couples who are married and want to get divorced? Does the law cater for such marriages? And how are they different from heterosexual divorces. Before we deal with the dissolution aspect of a same-sex marriage, let us first deal with the validity and legality of the same-sex marriage itself.

What are same-sex marriages?

This sounds like a simple question. However, without presuming too much, let us unpack the law. Here we will look at the Civil Union Act 17 of 2006. It is this Act of Parliament that made same-sex marriages legal in South Africa.

Civil Union Act, 17 of 2006

According to the Civil Union Act, a “civil union” means the voluntary union of two persons who are both 18 years of age or older which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others“.

Furthermore, according to the Act, a “civil union partner” means a spouse in a marriage or a partner in a civil partnership. as the case may be, concluded in terms of this Act“.

From the aforementioned, it is clear that there are two types of civil unions, the one is a marriage, and the other is a civil partnership.

Now let us have a look at what the legal requirements are for a gay or lesbian couple to enter into a same-sex marriage as provided for in the Civil Union Act.

Requirements for solemnisation and registration of a civil union

The requirements for the solemnisation and registration of a civil union are as follows as provided for in the Act:

“8. (1) A person may only be a spouse or partner in one marriage or civil partnership.
( 2 ) A person in a civil union may not conclude a marriage under the Marriage Act or the Customary Marriages Act.
(3) A person who is married under the Marriage Act or the Customary Marriages Act may not register a civil union.
(4) A prospective civil union partner who has previously been married under the Marriage Act or Customary Marriages Act or registered as a spouse in a marriage or a partner in a civil partnership under this Act, must present a certified copy of the divorce order, or death certificate of the former spouse or partner, as the case may be, to the marriage officer as proof that the previous marriage or civil union has been terminated.
( 5 ) The marriage officer may not proceed with the solemnisation and registration of the civil union unless in possession of the relevant documentation referred to in subsection ( 4 ).
( 6 ) A civil union may only be registered by prospective civil union partners who would apart from the fact that they are of the same sex, not be prohibited by law from as the case may be, at any given time,  concluding a marriage under the Marriage Act or Customary Marriages Act.”

The aforementioned clauses basically say you should not be married, and there should be no legal reason why you cannot get married.

Now let us move on to the issue of divorces when it comes to gay and lesbian marriages

Should a gay or lesbian couple married in terms of the Civil Union Act wish to get divorced, the procedure is the same as would be in a marriage solemnised in terms of the Marriage Act. The legal documents, however, would be slightly different. For example, in the case of a gay marriage, where it comes to the type of civil marriage, and children, the following clauses would be inserted in the Particulars of Claim:

  1. The parties entered into a marriage or a civil partnership; and
  2. There are no children of the marriage, either through adoption or surrogacy;

Otherwise, the procedure would be exactly the same, save for in a gay marriage, only the word he would be used to describe the spouse and the word she, for a lesbian couple.

Contact us to assist you with your same-sex divorce

advice-child-maintenance-child-custody-divorceIf your same-sex marriage has irretrievably broken down, and you wish to get divorced, feel free to contact our offices for assistance. Based on our experience with same-sex divorces, additional knowledge on the law may be required when it comes to preparing the legal documents.

Related Post

Relocation with my minor child to Japan, Osaka (Consent and Refusal) – Advocate Muhammad Abduroaf

The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you.

Relocation of your minor child to Osaka, Japan

If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages seven or eight) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Emalahleni or Klerksdorp, South Africa, and you want to relocate to Osaka, Japan, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation.

What about Passport Consent to travel or relocate to Osaka, Japan?

The same applies when it comes to your minor child applying for a South African passport to relocate to Japan, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken.

What are the steps to follow when I want to relocate to Osaka, Japan with my minor child? There is  another parent.

To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Osaka, Japan.

What can I do if the other parent does not want to consent to the minor child’s relocation to Osaka, Japan?

If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Osaka, Japan, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Osaka, Japan. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Osaka, Japan, the Court would make it possible despite the issue of consent or refusal.

What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Osaka, Japan?

If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Osaka, Japan – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Osaka, Japan, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself.

Getting legal assistance or help with your relocation application to Osaka, Japan

If you require legal assistance or representation with relocating to Osaka, Japan due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

Posted on by Telelaw

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