Du Toit v Minister of Welfare and Population Development
Encyclopedia
Du Toit and Another v Minister of Welfare and Population Development and Others is a decision of the Constitutional Court of South Africa
which granted same-sex couples the ability to jointly adopt children. LGBT people had already been able to adopt children individually, but only married couples could adopt jointly; the decision was handed down in September 2002, four years before same-sex marriage
became legal in South Africa. The court ruled unanimously that the statutory provisions limiting joint adoption to married couples were unconstitutional, and the resulting order amended the law to treat same-sex partners in the same way as married couples.
The case was brought in 2001 by Suzanne du Toit and Anna-Marié de Vos, who had been partners since 1989. They adopted two children in 1995, but because the law did not allow adoption by unmarried partners, de Vos was the children's only legal parent. They applied to the Pretoria High Court to have the relevant provisions of the Child Care Act and the Guardianship Act declared unconstitutional on three grounds: that they unfairly discriminated against du Toit and de Vos on the prohibited grounds of sexual orientation and marital status, that they infringed on du Toit's right to dignity, and that they violated the principle that the best interests of the child are paramount in situations involving children. The government did not oppose their application, and on 28 September 2001 the High Court ruled in their favour and ordered words to be "read in" to the acts to give "permanent same-sex life partners" the same rights as married spouses.
South Africa's constitution requires that any court order invalidating an Act of Parliament
be confirmed by the Constitutional Court. That court heard argument on 9 May 2002, including a report by a curator ad litem
representing the interests of the children, and a submission by the Lesbian and Gay Equality Project
as amicus curiae
relating to the welfare of children of same-sex partners in the event of a breakup. The court handed down its ruling on 10 September, unanimously agreeing with the High Court's judgment and confirming its order.
The Child Care Act and Guardianship Act were subsequently repealed and replaced by the Children's Act
, which was enacted in June 2006 although the adoption-related provisions only came into force in April 2010. It allows for adoption by married couples and by "partners in a permanent domestic life-partnership" regardless of orientation. In the interim, same-sex marriage became legal in November 2006, and is legally equivalent to opposite-sex marriage for all purposes, including adoption.
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
which granted same-sex couples the ability to jointly adopt children. LGBT people had already been able to adopt children individually, but only married couples could adopt jointly; the decision was handed down in September 2002, four years before same-sex marriage
Same-sex marriage in South Africa
Same-sex marriage has been legal in South Africa since 30 November 2006, when the Civil Union Act, 2006 came into force, having been passed by Parliament earlier that month. A ruling by the Constitutional Court on 1 December 2005 had given Parliament one year to make same-sex marriage legal...
became legal in South Africa. The court ruled unanimously that the statutory provisions limiting joint adoption to married couples were unconstitutional, and the resulting order amended the law to treat same-sex partners in the same way as married couples.
The case was brought in 2001 by Suzanne du Toit and Anna-Marié de Vos, who had been partners since 1989. They adopted two children in 1995, but because the law did not allow adoption by unmarried partners, de Vos was the children's only legal parent. They applied to the Pretoria High Court to have the relevant provisions of the Child Care Act and the Guardianship Act declared unconstitutional on three grounds: that they unfairly discriminated against du Toit and de Vos on the prohibited grounds of sexual orientation and marital status, that they infringed on du Toit's right to dignity, and that they violated the principle that the best interests of the child are paramount in situations involving children. The government did not oppose their application, and on 28 September 2001 the High Court ruled in their favour and ordered words to be "read in" to the acts to give "permanent same-sex life partners" the same rights as married spouses.
South Africa's constitution requires that any court order invalidating an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
be confirmed by the Constitutional Court. That court heard argument on 9 May 2002, including a report by a curator ad litem
Curator ad litem
Curators ad litem are legal representatives, usually solicitors, who are appointed by court in Scotland, when the court believes that the person lacks the mental capacity to make decisions for themselves. The curator ad litem represents the person in court, making decisions in the person's interests...
representing the interests of the children, and a submission by the Lesbian and Gay Equality Project
Lesbian and Gay Equality Project
The Lesbian and Gay Equality Project , formerly known as the National Coalition for Gay and Lesbian Equality , is a non-profit, non-governmental organization in South Africa that focuses on the expansion of LGBT civil rights in South Africa and other countries in sub-Saharan Africa...
as amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
relating to the welfare of children of same-sex partners in the event of a breakup. The court handed down its ruling on 10 September, unanimously agreeing with the High Court's judgment and confirming its order.
The Child Care Act and Guardianship Act were subsequently repealed and replaced by the Children's Act
Children's Act, 2005
The Children's Act, 2005 is an act of the Parliament of South Africa that consolidates and reforms the law on matters related to children...
, which was enacted in June 2006 although the adoption-related provisions only came into force in April 2010. It allows for adoption by married couples and by "partners in a permanent domestic life-partnership" regardless of orientation. In the interim, same-sex marriage became legal in November 2006, and is legally equivalent to opposite-sex marriage for all purposes, including adoption.