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03 Lesbian and Gay Families

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Lesbian and Gay Families
DEFINITION: same-sex life partnerships refers to two people of the same sex living together
outside marriage in a relationship which is analogous to, or has most of the characteristics of a
marriage.
Various other terms are used to signify this relationship the most common being domestic
partnership, cohabitation, living together, concubinage, de facto marriage and common-law
marriage.
These terms used to refer solely to heterosexual relationships but the terms “life partnership
is now used to encompass heterosexual and homosexual relationships.
Requirements are the same as for heterosexual life partnerships
After a number of CC judgments these partnerships now have many of the same consequences
as marriage
Opposing arguments
1) Recognizing such marriages and life partnerships undermines the traditional institution of
marriage, which is a heterosexual union. It also conflicts with public morality and encourages
amoral behaviour.
2) They cannot fulfill the aims of marriage (procreation) and it is not in the best interests of a
child to have a gay parent.
Supporting Arguments
1) Marriage is traditionally a heterosexual union which may be preserved, however same-sex
couples should not be excluded from a legal relationship very similar to marriage or it would
not be constitutional
2) Public opinion does not determine constitutionality, non-recognition of same-sex life
partnerships and prohibition of same-sex marriage violates the right to equality of gay and
lesbian persons (s9 of the Constitution), their right to dignity and right to privacy.
3) Saying gays and lesbians are “abnormal” is insulting and disrespectful to those principles of
equality, dignity and freedom.
4) The Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs held that same-sex life partnerships are not indistinguishable from heterosexual
relationships: “Gays and lesbians in same-sex life partnerships are as capable as heterosexual spouses of
expressing and sharing love in its manifold forms including affection, friendship, eros and charity. . .They
are likewise capable of forming intimate, permanent, committed, monogamous, loyal and enduring
relationships; or furnishing emotional and spiritual support; and of providing physical care, financial
support and assistance in running the common household.”
5) Procreation is not an acceptable justification for infringement of same-sex couples’ rights.
Further it is demeaning even to those people who are unable to procreate for certain biological
problems such as infertility, implying they are inadequate human beings.
6) Best interests: Although some view it affects the child physiologically, research shows there is
no difference in physiological development of children with heterosexual or homosexual
parents. As for those children possibly becoming homosexual or being stigmatizied by society,
it is irrelevant because the Constitution does not legitimize such stigmatization or
discrimination on the basis of sexual orientation anyway.
Those who oppose homosexual unions and recognition of same-sex life partnerships do so because they are “immoral” or
“wrong”, however instead of focusing on them as though they are problems those people should rather divert their attention to
proper problems such as child abuse, or finding solutions for the problems in maintenance courts and so on. There are serious
things affecting people’s health (HIV), safety (domestic violence), lives (rape and other crime) and so being outraged at gays
and lesbians for their choice in lifestyle just because they don’t like that lifestyle if futile. Gays and lesbians are not hurting
anyone with their choice but some heterosexual parents beat their children, or cheat on their spouses, so why not focus on
rectifying that instead of a supposed “problem” which does not even exist?
Regarding children, a homosexual parent is capable of loving a child just as much as a heterosexual parent is. There is
a problem in South Africa, due to various factors, with orphans and children needing to be adopted, so if a gay person or couple
wishes to raise a child he/she/it should not be denied because surely it would not be in the best interest of that child to have a
life lacking love, care and support of a parent, homosexual or not.

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South African Law Reform Commission
Discussion Paper 104 Project 18 Domestic Partnerships
1) Amendment of the Marriage Act enabling same-sex couples to marry, thus all marriages would
be concluded by way of civil ceremony
2) Civil unions (Civil Union Act 17 of 2006)
3) Registered partnerships for civil unions for same-sex couples and heterosexual couples; these
would have the same consequences for marriage
4) Automatic consequences for certain partnerships without being registered
5) Combination of all of the above options to regulate heterosexual and homosexual life
partnerships
LEGAL CONSEQUENCES OF SAME-SEX LIFE PARTNERSHIPS
CHILDREN
Adoption
There is nothing to preclude an unmarried person from adopting a child, provided that the
proposed adoption is in the child’s best interests
It is unconstitutional to prevent adoption by reason of the applicant’s sexual orientation
Partners in a same-sex life partnership may jointly adopt a child or one partner may adopt the
child of his/her partner, with the result that the child is deemed to be the legitimate (marital)
child of both partners.
They share joint guardianship which may be exercised independently, except in respect of
those matters for which the Guardianship Act 192 of 1993 requires the consent of both
partners.
Assisted Conception
Both parties to a lesbian life partnership are deemed to be the parents of a child born to either
partner as a result of artificial insemination with the gamete or gametes of any person other
than the woman.
The child will be the legitimate child of the partners, provided that they both consented to the
use of artificial insemination
Guardianship
In principle anyone who can demonstrate sufficient interest is entitled to apply for
guardianship of a child
The decisive criterion is the best interests of the child
The rules in the Guardianship Act 1993 regulating the exercise of joint guardianship also
extend to same-sex couples where both partners are guardians.
Custody and Access
In principle, anyone who can demonstrate sufficient interest is entitled to apply for custody of
or access to a child.
The child’s best interests are the main criteria
Whilst a judge is entitled and indeed required to take into account all factors relevant to the
assessment of what is in the child’s best interests, unfair discrimination may result where his
reasoning includes recourse to gender stereotypes or any stigmatization of an applicant’s
sexuality.
OTHER
Financial Rights Upon The Death Of One Partner
If X and Y are in a same-sex life partnership and X passes away, Y could not claim inheritance
from X’s estate.
Intestate Succession Act 1987
According to this act, benefits from the estate of a deceased partner do not extend to people
in same-sex partnerships

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Lesbian and Gay Families ❖ DEFINITION: same-sex life partnerships refers to two people of the same sex living together outside marriage in a relationship which is analogous to, or has most of the characteristics of a marriage. ✓ Various other terms are used to signify this relationship – the most common being domestic partnership, cohabitation, living together, concubinage, de facto marriage and common-law marriage. ✓ These terms used to refer solely to heterosexual relationships but the terms “life partnership” is now used to encompass heterosexual and homosexual relationships. ▪ Requirements are the same as for heterosexual life partnerships ▪ After a number of CC judgments these partnerships now have many of the same consequences as marriage Opposing arguments 1) Recognizing such marriages and life partnerships undermines the traditional institution of marriage, which is a heterosexual union. It also conflicts with public morality and encourages amoral behaviour. 2) They cannot fulfill the aims of marriage (procreation) and it is not in the best interests of a child to have a gay parent. Supporting Arguments 1) Marriage is traditionally a heterosexual union which ...
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