Page:Fourie v Minister of Home Affairs (SCA).djvu/82

Rh ‘… problems of great complexity would be involved if recognition were to be given to same-sex marriages. They must be left to Parliament.’

These statements do not apply with the same force in this country. 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’. Professor Church says: ‘In South Africa until recently, however, the traditional notion of marriage was that it was a legally recognized voluntary union for life in common of one man and one woman, to the exclusion of all others while it lasts. In terms of this definition the constitutive elements of the marriage is that it is a legal institution, the coming into being and termination of which is legally determined, it is based on the consent of the parties to it, and it is only possible between two persons of the opposite sex. In the present multicultural South African society and in the light of the new constitutional dispensation, this definition no longer holds good. In the first place, in the light of the Constitution and the Recognition of Customary Marriages Act that came into