Page:Fourie v Minister of Home Affairs (SCA).djvu/81

Rh available to us and then only if it can be regarded as an incremental step.

In Bellinger v Bellinger [2003] 2 AC 467 (HL(E)) the House of Lords upheld a decision dismissing a petition under s 55 of the Family Law Act 1986 for a declaration that a marriage celebrated between a person registered at birth as a male who later underwent gender re-assignment surgery and a male partner was valid but it granted a declaration under s 4 of the Human Rights Act 1998 that s 11(c) of the Matrimonial Causes Act 1973 (which provides that a marriage is void unless the parties are ‘respectively male and female’) is incompatible with the appellant's right to respect for her private life under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and her right to marry under art 12 of the Convention. One of the points considered was whether the problem confronting Mrs Bellinger could not be resolved by recognising same-sex marriages. Lord Nicholls of Birkenhead said (at para 48): ‘[i]t hardly needs saying that this approach would involve a fundamental change in the traditional concept of marriage’. Lord Hope of Craighead was of the same opinion. At para 69 of his opinion he said: