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VAN HEERDEN AJ The Starke sisters point out that this Court in the Fourie judgment declared the common law definition of marriage to be inconsistent with the Constitution and invalid to the extent that it does not permit same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples. It also declared the omission from section 30(1) of the Marriage Act 25 of 1961 after the words “or husband” of the words “or spouse” to be unconstitutional and the Marriage Act invalid to the extent of this inconsistency. However, the majority of the Court suspended these declarations of invalidity for a period of 12 months from the date of the judgment (1 December 2005) to allow Parliament to correct the defects. Reading-in will occur and section 30(1) of the Marriage Act will be read as including the words “or spouse” after the words “or husband” as they appear in the marriage formula only if Parliament should fail to correct the identified defects within this twelve month period (ie by 1 December 2006). If this happens, they submit, the unconstitutionality that has been identified in the Act would cease to exist because the word “spouse” as contained in section 1(1) of the Act would then include persons of the same sex who elect to marry.

As regards the previous cases in which the remedy of reading-in has been utilised by this Court in the context of discrimination on the ground of sexual orientation, the Starke sisters point out that an important point of distinction between those cases and the present is that the previous cases concerned situations in which the same-sex couple jointly sought relief in respect of rights that they would have had