- Title
- The right to parental leave for employees in same sex marriages
- Creator
- Nonyukela, Thembelihle Yolanda
- Subject
- Family leave--Law and legislation
- Subject
- Same-sex marriage
- Subject
- Same-sex parents
- Date Issued
- 2024-04
- Date
- 2024-04
- Type
- Master's theses
- Type
- text
- Identifier
- http://hdl.handle.net/10948/66264
- Identifier
- vital:74467
- Description
- The Constitutional Court declared in the much-celebrated decision of Minister of Home Affairs v Fourie that it was discriminatory “for the state to deny same-sex couples the right to marry.” The Civil Union Act became effective in 2006, and notwithstanding the statute's title, it permits same-sex marriages. The latter made South Africa one of the few nations globally to approve same-sex marriage and the first one on the continent. In fact, the legislation permits same-sex, together with heterosexual individuals, to enter into legally binding unions, and both parties can elect whether to call the relationship a marriage or just a civil relationship. Regardless of the moniker chosen, the ramifications in law remain identical to those enumerated in the Marriage Act, permitting only relationships between individuals of opposite genders. A few years before the legalization of same-sex marriages, rulings from the courts and legislation recognized permanent partnerships between people of the same gender for certain reasons, yet there was no system in place that provided a platform for partnership registration. A number of court judgments have established that a parent's sexual orientation should not be a factor in custody determinations. In 2002, a court ruled in Du Toit v Minister of Welfare and Population Development that same-sex couples had the same rights to adopt children as married couples. This meant that same-sex couples were entitled to adopt children together and that any partner could adopt the children of the other. The Children's Act, which has since replaced the adoption legislation, makes it possible for spouses and "partners in a permanent domestic life partnership" of any sexual orientation to adopt. In the case MIA v Information Technology Agency (Pty) Ltd, the paucity of comprehensive provisions for parental leave in South African law emerged to the forefront. In this particular case, the worker and his spouse entered into a civil union pursuant to the Civil Union Act. They agreed to start their own family and engaged in an arrangement for surrogate motherhood. The worker agreed to carry out the birth-mother's usual responsibilities. In contemplation of their child's delivery, the worker approached his employer requesting four months of maternity leave. The employer denied the request for leave on the pretext that the worker was not the mother of the child by blood. The worker petitioned the Labour Court for a decree directing the employer to provide her with maternity leave, arguing that the employer's denial constituted discrimination based on gender, sex, family responsibilities, and sexual orientation. The court concurred and ruled that permission to go on leave be granted. The court declared that there should be no exceptions to maternity leave for women who performed the employee's obligations, and that the duration of such leave should be the same as that for a biological mother. The court also determined that the best interests of the child being born must be considered when determining a mother's eligibility for maternity leave. The Labour Court noted that South African laws lagged behind in other areas of social development and related legislation. By failing to include parental leave for all potential 'parents' in its 'family law', it failed to attain the Constitution's goals regarding the rights of children and parents. Amendments to the Civil Union Act and the Children's Act made it possible for individuals in same-sex relationships to adopt children or enter surrogacy agreements and become parents. Legislation still does not grant these parents the right to parental leave.
- Description
- Thesis (LLM) -- Faculty of Law, Department of Mercantile law (Labour Law), 2024
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (64 pages)
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
- Rights
- All Rights Reserved
- Rights
- Open Access
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NMU Department of Mercantile Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Nonyukela ,TY- April 2024 .pdf | 903 KB | Adobe Acrobat PDF | View Details Download |