Page:Fourie v Minister of Home Affairs (SCA).djvu/80

Rh sex relationships should be acknowledged by the law and identifies three alternative ways of effecting legal recognition to such relationships, viz (a) ‘opening up the common-law definition of marriage to same-sex couples by inserting a definition to that effect in the Marriage Act’; (b) separating the civil and religious elements of marriage, by amending the Marriage Act to the extent that it will only regulate the civil aspect of marriage, namely the requirements and consequences prescribed by law, and by providing in it for the civil marriage of both same- and opposite-sex couples; and (c) providing what is called a ‘marriage-like alternative’, according same-sex couples (and possibly also opposite-sex couples) the opportunity of concluding civil unions with the same legal consequences as marriage.

As appears from what I have said above, I share the Commission’s view that the fact that there is no legal recognition of same-sex relationships is contrary to the Constitution. It is clear, however, that this Court is not able, in the exercise of its jurisdiction to develop the common law so as to promote the spirit, purport and objects of the Bill of Rights, to grant relief based on the incorporation into our law of either the second or the third options mentioned by the Law Reform Commission. Only the first option is