Case note: Same-sex Marriage in South Africa –the constitutional Court's Judgment
- 681 Downloads
Late last year the Constitutional Court of South Africa decided that the exclusion of same-sex couples from the common law definition of marriage and the statutory marriage formula was unconstitutional as it violated the rights of such couples to equality. The Court suspended the declaration of invalidity for one year to allow Parliament to enact new legislation to correct the defects, failing which certain words would be read into the legislation to accommodate same-sex marriage. A single judge dissented on the issue of remedy, finding that the Court should have developed the common law to include same-sex couples within the definition of marriage and read the necessary wording into the legislation with immediate effect. The decision is the culmination of a legal struggle by gays and lesbians for recognition of their relationships and the protection of their rights. While the scope of the right to marry may have been extended, the rights of domestic partners lag behind, often to the detriment of women in these relationships.
Keywordsdomestic partnerships equality marital status same-sex marriage sexual orientation
Unable to display preview. Download preview PDF.
Thanks to Cathi Albertyn, Jonathan Berger and Paul Jammy for their helpful comments on this note. I would like to acknowledge the enormous contribution of the late Professor Ronald Louw to the struggle for the rights of gays and lesbians in South Africa.
- Goldblatt B.(2003) Regulating Domestic Partnerships – A Necessary Step in the Development of South African Family Law”, South African Law Journal 120/3:610–629Google Scholar
- Louw R. (2004). A Decade of Gay and Lesbian Equality Litigation. In: du Plessis M., Pete S. (eds), Constitutional Democracy in South Africa 1994–2004. Durban, LexisNexis Butterworths, pp. 65–79Google Scholar
- Rickard, C., “At heart, ruling lacks courage”, Sunday Times, 4 December 2005Google Scholar
- Steinberg, J., “Two judgments that show a new light, an old shadow”, Business Day, 17 January 2006Google Scholar