La unión convivencial a la luz del derecho internacional privado argentino. / Some considerations about domestic partnerships in the ligth of argentine international private law

Con la sanción del Código Civil y Comercial de la Nación (CCCN) en 2015 se introdujo en el sistema legal argentino el instituto jurídico de la unión convivencial, siendo regulada en el mismo desde la doble concepción de derecho interno y de derecho internacionalprivado.El objetivo de este trabajo es hacer algunas consideraciones de dicho instituto desde la óptica del Derecho internacional privado y de los problemas que las normas que lo regulan sobre jurisdicción y derecho aplicable pueden acarrear en su interpretación y aplicación y proponer la discusión de una reforma de la norma reguladora del derecho aplicable acorde a las necesidades actuales del tráfico jurídico.ABSTRACT: With the enactment of the new Civil and Commercial Code of the Argentine Republic (CCC) in 2015, the legal concept known as domestic partnership was introduced into the Argentine legal system, and it was organized both from the perspective of domestic law and internationalprivate law. The goal of this paper is to provide various considerations as regards such legal concept in the light of both international private law and the problems that the norms regulating such concept may involve in terms of competence and applicable law, for interpretation and applicability purposes thereof. Besides, this work seeks to open debate for a reformulation of the norm regulating applicable law tailored to the current needs of legal workload.

‘Please don’t mind if I got this wrong’

Twelfth-century church lawyers employed concepts like spiritual marriage to justify norms regulating Christian life. In Medieval Marriage (2005), David d’Avray has argued that spiritual marriage was key to the notion of marriage as an unbreakable bond and exerted real influence on the domestic partnerships of Western Christians. The present chapter challenges this assertion, questioning (1) the contention that the related idea of canonical bigamy assumed shape under the decisive influence of theological tenets. The principle of matrimonial indissolubility is also discussed (2), again suggesting that spiritual marriage furnished juristic theory with just one rationale among many. Canonists drew on biblical imagery to reason by way of analogy but maintained much of their interpretive freedom in doing so.

Implications of Obergefell for Same-Sex Marriage, Divorce, and Parental Rights

This chapter examines the implications of the landmark US Supreme Court decision Obergefell v. Hodges for same-sex marriage, divorce, and parental rights. Heralded as one of the most significant civil rights victories in recent memory, Obergefell had an immediate impact on the lives of same-sex couples by providing uniform and nationwide access to both marriage and divorce. It ended a confusing patchwork of state laws, some of which recognized same-sex marriage and some of which prohibited not only same-sex marriage but also domestic partnerships and civil unions. Obergefell also ensured that all same-sex married couples would be eligible for federal benefits regardless of where they lived. The longer-term effects and applications of Obergefell remain unclear, especially with respect to parental rights. In addition, Obergefell has ignited a backlash of religious exemptions law and concern remains that marriage equality may further marginalize nontraditional families and those who choose not to marry.

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

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.

Bermuda same-sex rights reversal prompts controversy

Subject The reversal of same-sex marriage legislation. Significance On February 7, the governor of Bermuda, John Rankin, approved the Domestic Partnership Act, which banned same-sex marriage in the British Overseas Territory (OT) just months after it had been legalised through a local court ruling. The Act provides for domestic partnerships for both same-sex and opposite-sex couples. The legislation and the British governor’s assent to it provoked a storm of controversy, as Bermuda became the first jurisdiction to remove the legal right to marriage after it had been granted. Impacts The move may affect the business of some cruise ship companies registered in Bermuda. London will remain unwilling to interfere in the domestic affairs of autonomous OTs. The new Act will feed into rising debates over same-sex marriage and LGBT rights in Latin America and the Caribbean.

Rethinking Volks V Robinson: The Implications of Applying a "Contextaulised Choice Model" to Prospective South African Domestic Partnerships Legislation

The article considers certain critical failings of the so-called "choice argument" (that is the view that, by opting to cohabit in a life partnership rather than marry or enter into a civil partnership, a life partner is not entitled to the legal benefits provided by matrimonial [property] law) as it was applied to opposite-sex life partnerships by the majority of the Constitutional Court in Volks v Robinson.[1] On the basis of Canadian jurisprudence, a "contextualised choice model" is developed that distinguishes between need-based claims and those involving property disputes, and holds that the "choice argument" could at best be relevant regarding the latter category of claims, while the existence of a reciprocal duty of support is sine qua non for any need-based claim to succeed. These findings are applied to registered and unregistered domestic partnerships under the draft Domestic Partnerships Bill, 2008, with the aim of suggesting certain amendments to the Bill in the hope of ensuring a more consistent and principled legal position once the Bill is enacted.[1] 2005 5 BCLR 446 (CC).

An Embarrassment of Riches or a Profusion of Confusion An Evaluation of the Continued Existence of the Civil Union Act of 2006 in the Light of Prospective Domestic Partnerships Legislation in South Africa

As it stands, South African family law currently holds that the Marriage Act 25 of 1961 applies exclusively to the solemnisation of heterosexual civil marriages while same-sex couples have no choice but to formalise their relationships in terms of the Civil Union Act 17 of 2006. In addition, the legal position is complicated by the fact that the latter Act not only allows both heterosexual and homosexual couples to conclude a civil union, but also provides that a civil union may take the form of either a marriage or a civil partnership, both of which enjoy the same legal recognition as, and give rise to the same legal consequences, as a civil marriage under the Marriage Act. In January 2008, a draft Domestic Partnerships Bill saw the light of day, the potential enactment of which casts significant doubt as to whether the prevailing framework should be retained. With this potential development in mind, this paper considers the desirability of maintaining the "separate but equal" status quo by: (a) comparing the South African Law Reform Commission's pre-Civil Union Act proposals with the approach eventually adopted by the legislature; (b) comparing and contrasting the post-Civil Union Act position in South Africa with that of an established and well-ordered jurisdiction such as the Netherlands and, in the light hereof, considering the cases for and against repealing the Civil Union Act; and (c) by considering the desirability and practicality of the civil partnership's potential co-existence with the Domestic Partnerships Bill (as modified in accordance with a recent study). A proposal is made that could provide a less complex and better streamlined family law dispensation in South Africa.