scholarly journals INTESTATE SUCCESSION AND THE SURVIVOR OF AN UNFORMALISED SAME-SEX CONJUGAL RELATIONSHIP: Laubscher No v Duplan 2017 (2) SA 264 (CC)

Obiter ◽  
2018 ◽  
Vol 39 (1) ◽  
Author(s):  
Michael Cameron Wood-Bodley
Keyword(s):  
Constitutional Court ◽  
Same Sex ◽  
Same Sex Couples ◽  
Lesbian Relationship ◽  
Substantive Equality ◽  
Civil Union ◽  
Opposite Sex ◽  
Domestic Partnerships ◽  
The Right

When a person dies intestate his or her heirs are determined by the provisions of section 1(1) and (2) of the Intestate Succession Act 81 of 1987. Included amongst the heirs is the deceased’s surviving spouse, who either takes the entire estate or shares it with the deceased’s descendants (if any). Historically, the reference to “spouse” in the Act was taken to mean a person to whom the deceased was married in terms of the Marriage Act 25 of 1961. Accordingly, persons who were married to the deceased merely by religious rites and persons with whom the deceased was in a long-term conjugal relationship that was unformalised by marriage were excluded.The advent of constitutional democracy in South Africa resulted in a number of challenges to this status quo through reliance on the equality clause of the Bill of Rights. As a result of these challenges it has now been recognised that the survivor of a Hindu marriage, a monogamous Muslim marriage, and a polygynous Muslim marriage all have the right to inherit on intestacy as a “spouse”. Furthermore, in a groundbreaking decision in Gory v Kolver NO (Starke and others intervening) (2007 (4) SA 97 (CC)) the Constitutional Court recognised that the exclusion of the surviving partner of a gay or lesbian relationship from the right to inherit on intestacy was unconstitutional, and directed that the relevant sections of the Intestate Succession Act be amended by a reading-in of additional words to remedy the unconstitutionality. These words conferred the right to inherit on intestacy on the survivor of a monogamous permanent same-sex partnership in which the partners undertook reciprocal duties of support. At the time of writing no survivor of an unformalised opposite-sex relationship has challenged his or her exclusion from intestate succession. Possibly this reticence has been influenced by the decision in Volks NO v Robinson (2005 (5) BCLR 446 (CC)) (hereinafter “Volks”). In Volks the Constitutional Court held that it is not unconstitutional for the Maintenance of Surviving Spouses Act 27 of 1990 to distinguish between married and unmarried persons by giving the survivor of a marriage a claim for reasonable maintenance against the estate of the deceased spouse but not giving a similar claim to the survivor of a relationship in which the parties did not marry.Paleker has raised the question whether the Gory order “must still be applied in light of the Civil Union Act” but he comes to no firm conclusion, and states tentatively that “if marriage … is a precondition for inheriting, persons in same-sex unions who have not solemnised their relationship after the coming into force of the Civil Union Act … may be precluded from inheriting intestate from each other”. On the other hand De Waal and Schoeman-Malan are clearly of the view that the order in the Gory case still operates and – whilst regarding the current position as “anomalous” – they state that it “will probably continue until the Domestic Partnerships Bill [GN36 in GG 30663 of 2008-1-14] eventually does become law”. This has also been the interpretation accepted by the Master’s office acting on advice from the Senior State Law Advisor. The different treatment accorded same-sex couples by the continued retention of the benefits conferred by Gory has been defended on the grounds of substantive equality, since many practical obstacles still stand in the way of same-sex couples formalising their relationships.The question of the continued applicability of the reading-in order in Gory has now come before the Constitutional Court in Laubscher NO v Duplan (2017 (2) SA 264 (CC)) and it is this case which is the focus of this note.

Can Same-Sex Partners Consent to Organ Donation?

2003 ◽  
Vol 29 (1) ◽  
pp. 31-44
Author(s):  
Roderick T. Chen ◽  
Alexandra K. Glazier
Keyword(s):  
Organ Donation ◽  
Legal Status ◽  
Sex Partners ◽  
Same Sex ◽  
Same Sex Couples ◽  
Civil Union ◽  
Organ Donations ◽  
Domestic Partnerships ◽  
Appeals Court ◽  
Estate Law

As more same-sex couples enter into civil unions and domestic partnerships, the courts and other institutions are beginning to consider the implications of these partnerships in several areas of the law. A Georgia appeals court, for example, recently published the first opinion addressing this issue, ruling that a civil union of two women, obtained in Vermont, was not equivalent to a marriage for the purposes of interpreting a child custody agreement entered into in Georgia. As many observers predicted, the enactment of legislation recognizing same-sex partnerships has profound implications on the practice of family law, trust and estate law and healthcare law.This Article focuses on an area of healthcare law in which the legal status of a civil union or domestic partnership could have significant consequences—organ donations. In particular, it explores whether a civil union or domestic partner is an appropriate party to consent to an organ donation.

scholarly journals Sexual Citizenship and the Civil Union Act 2004

2006 ◽  
Vol 37 (2) ◽  
pp. 281 ◽  
Author(s):  
Nan Seuffert
Keyword(s):  
Family Relationships ◽  
Private Law ◽  
Heterosexual Relationships ◽  
Committed Relationships ◽  
Same Sex ◽  
State Recognition ◽  
Parliamentary Debates ◽  
Same Sex Couples ◽  
Civil Union

This article analyses the parliamentary debates on the Civil Union Act 2004, which provides for legal recognition of same sex relationships, for stories of national identity.  A close reading of the parliamentary debates on the Act suggests that although the supporters and opponents of the legislation seemed to be worlds apart, many told similar stories about New Zealand as a nation, and citizens within that nation, emphasising similar values and aspirations.  Both sides told stories of citizens, of New Zealanders, as tolerant and fair, as forwarding-looking progressives who value stable long-term, committed relationships, warm loving communities for children, and strong families and family relationships.  Both sides generally saw marriage as a positive institution, a cornerstone of society and a building block for society and the nation.  While some talked of existing alternatives to marriage, such as de facto relationships, and there was some recognition that not all marriages are good ones, with a few notable exceptions, there was little mention of critiques of marriage as an institution and little or no positive mention of relationships outside of the paradigm of long-term committed, monogamous relationships.  Further, while there were arguments, reflecting a privatisation paradigm, that the Civil Union Act 2004 was not necessary since the rights and duties of same sex couples could be structured using the private law of contract and trusts (a claim that was debated), there was no suggestion that state recognition of marriage should be abolished, or that long-term heterosexual relationships should be structured through private law.

Reciprocal Antidiscrimination Arguments

2013 ◽  
Vol 6 (2) ◽  
pp. 228-246
Author(s):  
Yofi Tirosh
Keyword(s):  
Social Context ◽  
Same Sex ◽  
Surrogate Mothers ◽  
Same Sex Couples ◽  
Antidiscrimination Law ◽  
The Right ◽  
Analytical Tools

Abstract This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication.

Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights

2011 ◽  
Vol 12 (10) ◽  
pp. 1746-1763 ◽  
Author(s):  
Sarah Lucy Cooper
Keyword(s):  
Human Rights ◽  
Family Life ◽  
European Convention ◽  
Same Sex ◽  
Registration System ◽  
Same Sex Couples ◽  
European Court ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

scholarly journals Commitment Without Marriage

2009 ◽  
Vol 30 (6) ◽  
pp. 738-756 ◽  
Author(s):  
Corinne Reczek ◽  
Sinikka Elliott ◽  
Debra Umberson
Keyword(s):  
Life Course ◽  
Life Course Perspective ◽  
Union Formation ◽  
Committed Relationships ◽  
Same Sex ◽  
Same Sex Couples ◽  
Clear Cut ◽  
The Right ◽  
Depth Interviews

The majority of Americans will marry in their lifetimes, and for many, marriage symbolizes the transition into long-term commitment. However, many Americans cannot legally marry. This article analyzes in-depth interviews with gays and lesbians in long-term partnerships to examine union formation and commitment-making histories. Using a life course perspective that emphasizes historical and biographical contexts, the authors examine how couples conceptualize and form committed relationships despite being denied the right to marry. Although previous studies suggest that commitment ceremonies are a way to form same-sex unions, this study finds that because of their unique social, historical, and biographical relationship to marriage and ceremonies, long-term same-sex couples do not follow normative commitment-making trajectories. Instead, relationships can transition more ambiguously to committed formations without marriage, public ceremony, clear-cut act, or decision. Such an understanding of commitment making outside of marriage has implications for theorizing alternative forms of union making.

scholarly journals A Brief Overview of the Civil Union Ac

2017 ◽  
Vol 13 (1) ◽  
pp. 190
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Legal Protection ◽  
Social Dimensions ◽  
Same Sex ◽  
Same Sex Couples ◽  
Constitutional Protection ◽  
Civil Union ◽  
The Republic ◽  
The Right

The adoption of the Constitution of the Republic of South Africa, 1996 (the Constitution) has provided a sound framework for the elimination of discrimination and prejudice against all members of our society. The Constitution provides for equal recognition of the right to freedom of religion and sexual orientation within the framework of the right to equality. This note aims to provide a brief overview and analysis of the general and potentially problematic features of the Civil Union Act 17 of 2006 (the Act) in the context of equality, generally and within realm of the constitutional protection afforded to everyone in South Africa. This contribution is limited to an examination of the quality of the legal protection accorded to same-sex couples as envisaged in the Act, and not to an analysis of the nature of the institution of marriage itself or the theological and social dimensions of same-sex marriages.

X and Others v. Austria (Eur. Ct. H.R.)

2014 ◽  
Vol 53 (4) ◽  
pp. 620-661 ◽  
Author(s):  
Kathleen A. Doty
Keyword(s):  
Human Rights ◽  
Same Sex ◽  
Same Sex Couples ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Opposite Sex ◽  
Grand Chamber ◽  
The Right ◽  
First Time

The Grand Chamber of the European Court of Human Rights, in X and Others v. Austria, held by a majority of ten to seven that Austria violated Article 14 (prohibition on discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when it denied an unmarried same-sex couple the right to a second-parent adoption when second-parent adoptions are available to unmarried opposite-sex couples. This is the first time the European Court of Human Rights (the Court) has recognized a right to second-parent adoption by same-sex couples.

An Argument for the Continued Validity of Woman-to-Woman Marriages in Post-2010 Kenya

2019 ◽  
Vol 63 (3) ◽  
pp. 303-328
Author(s):  
Monicah Kareithi ◽  
Frans Viljoen
Keyword(s):  
Legal Status ◽  
Historical Context ◽  
Cultural Practice ◽  
Same Sex ◽  
Opposite Sex ◽  
The Right

AbstractWoman-to-woman marriage is a form of customary marriage between two women, predominantly found in Africa. These customary marriages have been and to some extent still are conducted by various communities across Africa, including in Kenya. Communities such as the Kamba, Kisii, Nandi, Kikuyu and Kuria practise woman-to-woman marriages for a variety of reasons. The legal status of woman-to-woman marriages in Kenya is uncertain due to the provisions of article 45(2) of Kenya's Constitution of 2010 and section 3(1) of the Marriage Act of 2014, which stipulate that adults only have the right to marry persons of the opposite sex. However, a holistic and purposive reading of the constitution, taking into consideration its recognition of culture and the protection of children as important values in Kenyan society, and considering the historical context within which the provisions concerning same-sex marriages were included, leads to the conclusion that these provisions were not intended to proscribe the cultural practice of woman-to-woman marriage in Kenya. The constitutional validity of woman-to-woman marriage opens the door to a more expansive and fluid understanding of “family” in Kenya.

scholarly journals Narratives of Incorporation:  An Anthropological Analysis of Same-Sex Civil Unions  in New Zealand

2021 ◽  
Author(s):  
◽  
Dionne Steven
Keyword(s):  
New Zealand ◽  
Social Relationships ◽  
Normative Values ◽  
Contextual Knowledge ◽  
Same Sex ◽  
Civil Unions ◽  
Same Sex Couples ◽  
Civil Union ◽  
Mainstream Society ◽  
Symbolic Content

<p>In this thesis I examine civil unions from the perspective of New Zealand-based same-sex couples who have chosen to formalise their relationship. My approach is qualitative and in-depth and focuses on interpreting participants' own meanings and beliefs while also recognising the need for broader contextual knowledge. Through participants’ narratives, I explore why it was important for couples to have a civil union, how they chose to mark or enact the occasion, and the meanings they attribute to their choices and actions. Rather than treating the civil union as an isolated event, my analysis situates the civil union within four longer processual trajectories: individual biographical narratives, partner interactions, close social relationships, and trajectories of a socio-political nature. I then explore the contours of participants’ civil union ceremonies in terms of scale, style, and symbolic content. Throughout the thesis, I argue that civil unions facilitate incorporation for same-sex couples on a number of levels: incorporation in terms of inclusion in an important ‘meaning-constitutive’ practice; familial incorporation; and incorporation into mainstream society more generally. The incorporating effects of civil unions owe much to the symbolic capacities of law, the meaning inscribed in the socially dominant cultural model of marriage, and the characteristics of ritual. The importance of ritual to the anthropological enterprise is reaffirmed through this study; not only do rituals provide an important lens through which to examine the normative values of society but also the origins of social revitalization.</p>

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