Page:Minister of Home Affairs v Fourie.djvu/14



Rh marriages were often subjected to ecclesiastical and secular penalties, but their marriages were nonetheless as valid as the “regular” ones.

The present Marriage Act consolidated the laws governing the formalities of marriage and the appointment of marriage officers, and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7 September 1838 onwards. A study of the provisions of the Marriage Act makes it clear that it builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. Many may see a religious dimension to marriage, but this is not something that the law is concerned with.

Farlam JA then went on to hold that “[i]t will be recalled that s 9(1) of the Constitution provides that everyone has the right to equal protection and benefit of the law, while s 9(3) lists among the proscribed grounds of discrimination sexual orientation. Homosexual persons are not permitted in terms of the common-law definition to marry each other, however strong their yearning to establish a conjugal society of the kind described. As a result they are debarred from enjoying the protection and benefit of the law on the ground of their sexual orientation. This clearly constitutes discrimination within the meaning of s 9 of the Constitution.”

He added that the effect of the common law prohibition of same-sex marriages was clearly unfair because it prevented parties to same-sex permanent relationships, who are as capable as heterosexual spouses of establishing a consortium omnis vitae,

Rh