Ian Farlam

“ With us the concepts of marriage and the family have to be seen against the background of the numerous strands making up the variegated tapestry of life in South Africa. In addition the influence of the Constitution and its express recognition of the importance of the democratic values of human dignity and equality have played a major role in transforming attitudes in this as in many other areas of the law. The point is well put by Professor Joan Church in her valuable and scholarly article ‘Same-sex unions—Different Voices’. ”

“ After admitting that under the Constitution the appellants may not be discriminated against on the basis of their sexual orientation and that their human dignity may not be infringed and that they are, as it was put, ‘living in some sort of consortium with each other’, the respondents denied that the appellants are being discriminated against or that they are, as it was put, ‘suffering indignity because their intended marriage will not be recognised’. ”

“ In the first place, protecting the traditional institution of marriage as recognised by law may not be done in a way which unjustifiably limits the constitutional rights of partners in a permanent same-sex life partnership. ”

“ The effect of the common law prohibition of same-sex marriages is clearly unfair because it prevents parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae, of constituting a family and of establishing, enjoying and benefiting from family life, from entering into a legally protected relationship from which substantial benefits conferred and recognized by the law flow. ”

“ Holding, as I do, that the application of the common law definition of marriage subjects the appellants to infringements of their rights under ss 9 and 10 of the Constitution, I must conclude that this is an instance where the common law deviates from the spirit, purport and objects of the Bill of Rights and it should accordingly be developed, if this is possible and appropriate, so as to remove the deviation. ”

“ The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law.’
[88] ⁠This approach to the matter was expressly rejected by Ackermann J in the Home Affairs case [21] at para 38 where he said:
‘The respondents' submission that gays and lesbians are free to marry in the sense that nothing prohibits them from marrying persons of the opposite sex, is true only as a meaningless abstraction. ”

“ It is true that it is seen by many to have a religious dimension also but that is something with which the law is not concerned. Even though clerics are appointed marriage officers, when they solemnise marriages they do so in a twofold capacity: first as clerics, giving the benedictio ecclesiae to the couple and affording them the opportunity to take their vows at a religious service; and secondly as State marriage officers, bringing into existence a secular legal bond recognised by the State. ”

“ The argument is that procreation is somehow necessary to the concept of family and that same-sex couples cannot be families as they are incapable of procreation. Though there is undeniable value in procreation, the tribunal could not have accepted that the capacity to procreate limits the boundaries of family. It this were so, childless couples and single parents would not constitute families. Further, this logic suggests that adoptive families are not as desirable as natural families. ”

“ The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. ”

“ Gays and lesbians are certainly individually permitted to adopt children under the provisions of s 17 (b) of the Child Care Act 74 of 1983 and nothing prevents a gay couple or a lesbian couple, one of whom has so adopted a child, from treating such child in all ways, other that strictly legally, as their child. They can certainly love, care and provide for the child as though it was their joint child. ”

“ Here Parliament's intention was to provide a formula for the use of those capable of marrying each other and wishing to do so, unless in the case of a marriage solemnized by a marriage officer who was a minister of religion the formula observed by the denomination to which the minister in question belonged had been approved by the Minister of Home Affairs. It is important to note that no limitations are placed on the Minister's power to approve a religious marriage formula. ”

“ The Marriage Act contains a provision (s 28) which renders it lawful for a person to marry certain relatives of his of her deceased or divorced spouse. This provision repeals the common law rules which dealt with prohibited degrees of relationship in so far as collaterals by affinity are concerned. These rules were based on the canon law and, to the extent that they are still upheld by certain denominations, clerics belonging to such denominations would be unwilling to solemnise marriages between such persons. ”

“ This development culminated, as far as France was concerned, in the adoption in the constitution of 1791 of the principle that ‘the law only considered marriage as a civil contract; the Church was free to set up the sacrament in establishing the forms and conditions which might please it, the faithful were at liberty to respect its doctrines, but the State had no power to bind itself to impose them upon all citizens without affecting their liberty of conscience. ”

“ In reaching that conclusion he said, amongst other things:
‘As long as marriage is limited to opposite sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens that marriage is a (normatively) necessary part of their procreative endeavour; that if they are to procreate, their society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children; and that benefits are available explicitly to create a supportive and conducive atmosphere for those purposes. ”

“ The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.’
‘10. Everyone has inherent dignity and the right to have their dignity respected and protected.’ ”

“ Although same-sex marriage has as yet not been legally recognised, it is clear that in less than a decade there have been major policy changes in South Africa regarding homosexuals and homosexual conduct. ”

“ The Guardianship Act 192 of 1993 repealed the common law rule that a father is the natural guardian of his legitimate children and replaced it by the rule that parents share guardianship in respect of their legitimate children. ”

“ Any marriage officer who purports to solemnize a marriage which he is not authorized under this Act to solemnize or which to his knowledge is legally prohibited, and any person not being a marriage officer who purports to solemnize a marriage, shall be guilty of an offence and liable on conviction to a fine not exceeding four hundred rand or, in default of payment, to imprisonment for a period not exceeding twelve months, or to both such fine and such imprisonment. ”

“ Even so it seems that a modern court should treat “military or naval service” in s 4 as including any service in the armed forces of the state in question.’ (Footnotes omitted.)
[138] ⁠If one applies this presumption to the marriage formula in s 30 (1) of the Marriage Act, it is clear that, in order to give effect to Parliament's intention, it would not only be permissible but appropriate to regard the words ‘lawful wife (or husband) ’ as capable of including the words ‘lawful spouse’ if the common law definition were to be extended so as to cover same-sex marriages. ”

“ It may accordingly be argued that they do not afford a basis for adopting by judicial decision the first option suggested by the Law Commission, viz the opening up of the institution of marriage to same-sex couples, but rather as paving the way for the adoption by the legislature of the second or third options. ”

“ Sections 29 and 30 of the General Law Fourth Amendment Act 132 of 1993 abolished the marital power that a husband had over the person and property of his wife in respect of all marriages to which it still applied and also his power flowing from his position as head of the family. ”

“ This renders it unnecessary for me to decide whether the absence of a challenge to the constitutional validity of s 30 (1) precludes the appellants from receiving any relief at all in their application.
[99] ⁠It will be recalled that the court a quo approached the application on the basis that the appellants claimed to be married. After referring to their ‘assumption’ that they were married, Roux J held that they were not married as required by the law. It is clear that the learned judge was misled by the notice of motion, which spoke of the marriage of the parties. ”

“ Similar legislation was passed in the other colonies which eventually made up the Union of South Africa.
[78] ⁠The Marriage Act 25 of 1961 consolidated the laws governing the formalities of marriage and the appointment of marriage officers and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7 September 1838 onwards. It is clear from a study of the provisions of the Marriage Act that it builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. ”

“ Evidence for respondents
[57] ⁠The respondents caused an affidavit to be filed on their behalf in which they asked that the application be dismissed with costs. In this affidavit it was averred that the magistrate who told the appellants that a ‘marriage’ between them would not be legally valid was correctly stating the law as it stands. It was also conceded that the Department of Home Affairs is not prepared to register the proposed marriage between the appellants. ”

“ This does not mean that the courts will decide cases by reference to every shift in public opinion. The courts and the judiciary must have the confidence of the community in order to maintain their authority. ”

“ The respondents did not deny the first appellant's statements regarding the practical difficulties the appellants experience in consequence of the fact that they are not married but contented themselves with putting the appellants to the proof thereof.
[58] ⁠The respondents ‘admitted’ that the common law prohibits members of the same sex from entering into a valid marriage relationship. ”

“ A greater sensitivity towards and acceptance of cultural differences as well as the libertarian jurisprudence that has emerged in the new constitutional dispensation has shaped, and doubtless will still shape, changing policy. ”

“ The Ontario Court of Appeal in Halpern applied the ‘guidelines’ very strictly, without referring to Lamer CJC’s statement that they were not hard and fast rules or to the subsequent Supreme Court of Canada decisions to which Professor Hogg refers. Other Canadian courts confronted with the problem have suspended the coming into effect of their orders. Thus in Quebec Lamelin J suspended for two years the order she made in Hendricks v Quebec Procureur General, [75] as did the majority of the Divisional Court in the Halpern case. ”