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n South African Law Journal - The interplay between registered and unregistered domestic partnerships under the Draft Domestic Patnerships Bill, 2008, and the potential role of the (contextualised) putative marriage doctrine

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Abstract

In 2008 the South African legislature published a draft Domestic Partnerships Bill aimed at regulating the position of persons who live together outside of a legal marriage or civil union. The Bill makes provision for both registered and unregistered domestic partnerships. While the former involves a formal registration procedure, the latter allows either partner to an unregistered partnership that satisfies certain threshold criteria to 'opt-in' to the protection provided by the Bill by approaching a competent court, after the termination of the union, for certain relief. This article considers the salient features of, and interplay between, the partnership options under the Bill with a view to ascertaining whether the common law putative marriage doctrine is capable of being extended in order to assist partners who are of the bona fide belief that their partnerships will be recognised and protected under the Bill, while this is in reality not the case. The conclusion is reached that while the doctrine may in principle be extended to invalid 'registered' domestic partnerships, a refusal to extend the doctrine to 'unregistered' domestic partnerships will pass constitutional muster. This notwithstanding, the doctrine as currently applied in the context of the law of marriage is in need of being developed in order to cater for polygamous civil 'marriages', and this has important implications for applying the doctrine to domestic partnerships. The article also concludes that the Bill itself requires certain amendments, and that the applicability of the putative marriage doctrine depends on whether or not these amendments are made.

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/content/ju_salj/128/3/EJC53978
2011-01-01
2016-12-05
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