Section 1 of the Civil Union Act 17 of 2006: Does the blanket ban on minors from entering into a civil union underpin “the best interests of the child” principle in terms of the Constitution of the Republic of South Africa
The purpose of the study was to firstly determine whether the categorical ban of minors from entering into a civil union undermines the “the best interests of the child” principle, and if so, whether section 1 of the Civil Union Act unjustifiably violates the Constitution. The study furthermore evaluated the current South African marriage law system in determining whether the prohibition of minors from entering into a civil union, whilst the Marriage Act and the Recognition of Marriages Act afford minors (provided they obtain the required consent) the right to enter into a marriage, results in disparity and whether such disparity violates minors’ right to equality before the law and their right to have their dignity respected and protected. The study was conducted by applying qualitative research methodology. An interpretivist paradigm was applied whilst a descriptive and interpretive design were used to interpret and analyse the data. The data was collected in two phases. Phase one consisted of a historical and comparative analysis of primary and secondary sources. Semi-structured interviews were conducted in terms of the second phase of the data gathering proses. In conducting the interviews, ten participants were purposively selected from the offices of the family advocates in the area of Durban, Pietermaritzburg and Ntuzuma. Eight common themes emerged from the interviews. The findings, in respect of the second phase of the study, were integrated with the findings in respect of phase one. Ultimately the study concluded that as a result of section 1 of the Civil Union Act categorically excluding “the best interests of the child” principle, section 1 of the Civil Union Act is in violation of section 28(2) as well as other fundamental constitutional rights of minors. From the comparative analysis that was conducted within the first phase of the study, recommendations are made to address the indifference that results from the application of the various legislation regulating the current South African matrimonial law system.
best interests of the child --civil marriage --civil union --consortium omnis vitae --customary marriage --life partnership --marginalisation of same sex marriages --marriage formula --marriagable age --minor --permanent heterosexual life partnerships --same sex marriages --sexual orientation
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