Recently we’ve had quite a few queries about what happens when a legally married gay or lesbian couple decides to call it a day. We’re happy to answer these questions, but there is in fact very little to say.
Marriage is marriage
Same-sex marriage, often called ‘gay marriage’, despite the fact that not all men who have sex with men or women who have sex with women identify as ‘gay’, was a victory for gay rights expressly because it extended the right to legally marry to all members of society, regardless of sexual preference. Some countries had introduced the concept of civil partnerships or civil unions, conferring all the legal rights of marriage while withholding the actual institution of marriage from same-sex partners. This was often a compromise reached with politically powerful religious groups who resisted the notion of gay marriage. Thankfully, many of these countries, most notably the US and UK, have now extended the right to marry to all their citizens.
Here in South Africa, same-sex marriage has been legal for nearly 10 years, since 30 November 2006. South Africa was the fifth country in the world, the first in Africa (and unfortunately still the only one), the first in the southern hemisphere and the second outside Europe to legalise same-sex marriage.
Although some countries restrict same-sex unions to civil partnerships and forbid marriage, in South Africa every couple has the option of both. Civil partnerships came into being at the same time as same-sex marriage, and form part of the same legislation (the Civil Union Act 2006). Civil partnerships can be formed by opposite-sex couples and by same-sex couples, and carry the same rights, responsibilities and legal consequences as marriages. Civil partnership is often the choice of couples who do not adhere to any religious code and prefer a secular union.
Divorce is divorce
Just as marriage is marriage, should a same-sex marriage or civil partnership break down, divorce is divorce. The same legal process must be followed; and the same rights to a share in assets apply (depending on which marital property regime the marriage falls under – community of property, with or without accrual, or an antenuptial agreement). South African law provides for no-fault divorce based on the ‘irretrievable breakdown’ of the relationship. A number of factors may be given as evidence of a breakdown, including adultery, but the simplest and least harmful to all involved is one year’s physical separation. Divorce of same-sex couples is subject to exactly the same law.
Children of a same-sex marriage
Fans of Grey’s Anatomy will be aware of the battle between two moms for custody of their daughter. The girl is the biological child of one of the mothers, who were previously married. The court awarded custody to the stepmother, who eloquently testified that an adoptive parent or step-parent is no less a parent than a biological one.
If a same-sex couple decides to have children, it’s obvious that only one of the two can be the natural parent.But this does not automatically confer preferential rights in a custody battle, any more than a mother is automatically awarded custody over a father in a heterosexual divorce situation. The only factor that may increase the complexity of a same-sex divorce with children is the relationship with the other biological parent and the visitation arrangements, if he or she is involved in the child’s life (which is not always the case). There is no set precedent for this and each case must be resolved, hopefully amicably, by all parties.
Help is at hand in a difficult time
Whether same-sex or opposite-sex, marriage or civil union, the breakdown of a life partnership is a painful and trying time. At SD Law and Associates, we handle divorce with patience and sensitivity. We help clients reach the best possible settlement in terms of property, family structure and emotional stability. If you are in need of legal advice and support regarding divorce, contact Simon now on 087 550 2740 or 076 116 0623. Or email firstname.lastname@example.org.