n South African Journal on Human Rights - For whom does the bell toll? The challenges and possibilities of the Civil Union Act for family law in South Africa




The campaign to include same-sex couples within the legal institution of 'marriage' challenges us to define the goals and purposes of such a reform of family law. Three perspectives are identified in this paper : a 'formal-rights' perspective, a 'substantive-rights' perspective and a 'transformative perspective'. We argue that family law reform should seek to achieve the goals and purposes behind all three perspectives : seeking both equal legal and social status for lesbian and gay relationships through their being able to 'marry' whilst also de-centering marriage as the primary social form, allowing a diversity of relationships to be recognized in our law. The Civil Union Act passed in November 2006 has the potential to achieve all these aims through its creation of a new category (the civil union) that encompasses two relationship forms (a marriage or a civil partnership) between which couples must choose. This holds the possibility of conferring the social status of marriage on other forms of relationship, while distrupting the prioritization of marriage as the only or optimal form of valuable inter-personal relationship. However, several features of the Act (and the current legal framework relating to marriage) inhibit its potential to achieve the goals identified in this paper. These aspects are analysed and proposals made for their reform. We conclude the paper with the recognition that legislation alone cannot bring about the social transformation we argue for although the law can create an enabling environment for such a process of social change to take place.


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