Page:Fourie v Minister of Home Affairs (SCA).djvu/102

Rh service” of a foreign state which is at war with a friendly state. The mischief at which s 4 is aimed requires this phrase to be taken as now including air force service. Textual updating of the 1870 Act was recommended in the Report of the Committee of Privy Councillors appointed to inquire into the recruitment of mercenaries, but has not been done. 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.)

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 follows that s 30(1) of the Marriage Act does not afford a basis for denying the appellants relief in this matter.

SHOULD THE COURT'S ORDER BE SUSPENDED TO ENABLE PARLIAMENT TO DEAL WITH THE MATTER?

I am satisfied for the reasons I have given that the appellants have established that the continued application of the common law definition of marriage infringes their constitutional rights to equality and human dignity and that it is possible for this Court to give them an effective remedy because the extension of that definition to