Canon Law and the Church-State/State-Church Relationship

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LIFE PARTNERSHIP CONTRACTS

Same-sex life partners may enter into a life partnership contract (also known as a cohabitation or domestic partnership contract) to determine the rights and duties of each partner during the subsistence of the life partnership and to regulate the financial and proprietary consequences upon termination of the life partnership. A life partnership contract may contain any provision which is not impossible, against the law or immoral.10 The contract may, for example, contain provisions relating to the occupation and ownership of the common home, the procedure for the division of household goods after the termination of the life partnership, deal with ownership of assets owned before the inception of the life partnership and during its subsistence and provide for maintenance liability during the subsistence of the life partnership and after its termination.11 It is recommended that a life partnership contract be in writing, signed and if possible witnessed.12
It must be noted that in the past it was uncertain whether life partnership contracts were valid as they were branded as contracts upholding sexual immorality and consequently being contrary to public policy. According to Hahlo it is illogical to argue that public morals are served in declaring such a contract immoral13 and Heaton comments that the growing recognition oflife partnerships necessitates recognition of the validity of contracts to regulate the legal consequences of life partnerships.14
Importantly, the Constitution prohibits discrimination on the ground of marital status15 and it can therefore be argued that declaring a life partnership contract contrary to public policy will be unconstitutional when one considers the permissive decisions regarding the recognition and protection of same-sex life partnerships under a constitutional dispensation based on human rights.

CONTRACTS OF UNIVERSAL PARTNERSHIP

Same-sex life partners may also enter into a universal partnership either expressly or tacitly.16 A universal partnership is a partnership sui generis17 which comes into existence when the following requirements for formation are complied with namely, each party must contribute to the enterprise by bringing something into the partnership or undertake to bring something into it in future; the aim of the partnership must be to make a profit; the partnership must operate for the parties‟ joint benefit and the contract between the parties must be legitimate.18

THE COMMON HOME

In instances where life partners jointly enter into a lease agreement to rent their common home the rights and duties of the partners and the landlord are governed by the lease agreement and the common law.36 According to the common law each same-sex life partner is liable only for his or her share of the rent.37 However, in instances were the lease agreement states that the parties are jointly and severally liable for the rent either partner may be held accountable for the full amount of the rent.38 In the case of a joint lease, both same-sex life partners have „security of tenure‟ in the sense of having the right to reside in the leased property for the duration of the lease.39 If it is a sole tenancy, the non-tenant partner has no legal responsibilities and rights with regard to the leased property and is for that reason not liable to pay rent. A non-tenant also has no „securityof tenure‟ and can be evicted by the tenant partner upon termination of the life partnership.40

1 INTRODUCTION
1.1 Background ..
1.2 Research Problem and Purpose of Study .
1.3 Outline of Chapters
1.4 Research Method
2 HISTORICAL BACKGROUN
2.1 Introduction
2.2 Same-Sex Unions and the Concept of Marriage that was received into South Africa
2.2.1 Canon Law and the Church-State/State-Church Relationship
2.2.2 Roman-Dutch Law and the Secularisation of Marriage Law .
2.3 The Church-State/State-Church Relationship and Totalitarianism within the Apartheid Regime
2.4 Gay and Lesbian Movements and the Political Coalition Building that led to the Inclusion of Sexual Orientation in the Bill of Rights
2.5 Inclusion of Sexual Orientation in the Interim Constitution .
2.5.1 Introduction
2.5.2 The Various Views on the Inclusion of Sexual Orientation .
2.6 The Retention of the Sexual Orientation Clause in the Final Constitution
2.7 Post-Constitutional Developments
2.7.1 Legislative Developments .
2.7.2 Judicial Developments
2.7.2.1 The So-Called ‘Sodomy Judgement’
2.7.2.2 Extension of Rights to Same-Sex Life Partners who have Undertaken a Contractual Reciprocal Duty of Support
2.7.2.3 The Recognition of Same-Gendered Families
2.7.2.4 Acquiring Parental Authority in a Same-Sex Life Partnership
2.7.2.5 Affording Marriage Rights to Same-Sex Couple
2.8 Summary and Conclusion
3 THE CIVIL UNION ACT 17 OF 2006
3.1 Introduction
3.2 The Legislative Process that led to the Enactment of the Civil Union Act
3.2.1 The Recommendations made by the South African Law Reform Commission (SALRC) to Extend Marriage Rights to Same-Sex Couples
3.2.2 Draft Civil Union Bill .
3.3 General Descriptions of the Civil Union Act
3.3.1 Definition and Formulation of a Civil Union
3.3.2 Requirements for the Solemnisation and Registration of a Civil Union
3.3.2.1 General
3.3.2.2 The Prescribed Formalities
3.3.2.3 Registration of a Civil Union
3.4 Legal Consequences of a Civil Union
3.4.1 Invariable Legal Consequences of a Civil Union
3.4.2 Variable Consequences of a Civil Union
3.4.2.1 Matrimonial Property Regime
3.4.2.2 The Dissolution of a Civil Union
3.5 Particular Problems Arising from the Civil Union Act
3.5.1 Ex Officio Marriage Officers not Compelled to Solemnise Same-Sex Civil Unions
3.5.1.1 Anomalies Between Marriage Officers created by the Marriage Act and Civil Union Act
3.5.1.2 Religious Accommodation versus Sexual Orientation .
3.5.1.3 To Summarise
3.5.2 Marriageable Age
3.5.2.1 Is the Blanket Ban in Conflict with the Best Interests of Minor Children?
3.5.2.2 A Violation of Minors’ Constitutional Rights to Equality and Dignity
3.5.2.3 Additional Arguments
3.5.2.4 To Summarise
3.5.3 The Patrimonial Consequences of a Same-Sex Civil Union
3.5.3.1 Proposals to Reform the Lex Domicilii Matrimonii Rule
3.5.3.2 To Summaris
3.6 The Acquisition of Parental Responsibilities and Rights by Same-Sex Civil Union Partners
3.6.1 Female Civil Unions
3.6.2 Male Civil Union Partners
3.8 Conclusion
4 RECOGNITION AND LEGAL CONSEQUENCES OF SAME-SEX LIFE PARTNERSHIPS
4.1 Introductio
4.2 Protection of Life Partners by means of the Ordinary Rules of the Law
4.2.1 General.
4.2.2 Life Partnership Contracts
4.2.3 Contracts of Universal Partnership
4.2.4 Financial Consequences of Same-Sex Life Partnerships
4.2.4.1 Property Acquired Prior to and During the Subsistence of the Same-Sex Life Partnership
4.2.4.2 The Common Home
4.2.4.3 Joint Bank Account .
4.2.4.4 Maintenanc
4.2.5 Agenc
4.2.6 Will
4.3 The Legal Recognition which has been Afforded to Same-Sex Life Partnerships which have not been Solemnised and Registered under the Civil Union Act
4.3.1 Genera
4.3.2 Constitutional Jurisprudence
4.3.3 Statutory Recognition and Protection
4.3.4 Continued Protection and Recognition under Legislation and Judicial Developments after the Enactment of the Civil Union Act 2006
4.3.4.1 Genera
4.3.4.2 Children Born from a Permanent Same-Sex Life Partnership as a Result of Artificial Fertilisation
4.4 Essential Criteria for the Existence of a Same-Sex Life Partnership .
4.4.1 Consortium Omnis Vitae .
4.4.2 The Intention of Creating a Permanent Same-Sex
Life Partnership
4.5 Draft Domestic Partnership Bill 2008
4.6 Summary and Conclusion
5 CONSTITUTIONAL ASPECTS PERTAINING TO SAME-SEX LIFE PARTNERSHIPS THAT FALL OUTSIDE THE AMBIT OF THE CIVIL UNION ACT OF 2006 AND THE CONSTITUTIONALITY OF
6 CONCLUSION: A CRITICAL ANALYSIS OF THE EMANCIPATION OF GAYS AND LESBIANS IN SOUTH AFRICA
7 BIBLIOGRAPHY