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n South African Law Journal - With such changes as may be required by the context' : the legal consequences of marriage through the lens of section 13 of the Civil Union Act

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Abstract

The passing into law of the Civil Union Act 17 of 2006 extended the legal rights, privileges and duties of marriage to same-sex couples. In the literature on the Act thus far, very little attention has been given to the practical challenges involved in adapting our family law to accommodate same-sex civil union partners. These challenges emerge from s 13 of the Act, which stipulates that 'the legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context, to a civil union'. The phrase 'with such changes as may be required by the context' suggests that the extension of the legal consequences of marriage to same-sex civil union partners is a simple question of reading in gender-neutral terms where necessary. In reality, the application of s 13 to certain aspects of South African law gives rise to absurdity where the law assigns duties and responsibilities 'specifically and exclusively' to husbands or wives. These absurdities expose the problematic legacy of deep-seated gender discrimination in our law of marriage. The article seeks to demonstrate that s 13 of the Civil Union Act presents a challenge to reform the law in order to make marriage a truly non-gendered, non-discriminatory institution. The analysis focuses on two of the most important legal consequences of marriage that give rise to absurdities when interpreted in light of s 13: the assumption of a common surname and the determination of the proprietary consequences of marriage.

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/content/ju_salj/127/3/EJC53933
2010-01-01
2016-12-06
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