Page:Minister of Home Affairs v Fourie.djvu/15



Rh of constituting a family and of establishing, enjoying and benefiting from family life, from entering into a legally protected relationship from which substantial benefits conferred and recognised by the law flowed. He went on to say that the common law definition of marriage not only gave rise to an infringement of the appellants’ constitutional right not to be the victims of unfair discrimination in terms of section 9 of the Constitution but also to their right to human dignity in terms of section 10.

Farlam JA was of the view that the omission to challenge the marriage formula in the Marriage Act did not constitute a basis for denying the applicants relief. The finding by Roux J that the parties cannot be married as required by the law was wrong. The applicants’ true case was that they intended to enter into a marriage with each other and that they sought a declaration that such marriage, when entered into in accordance with the formalities in the Marriage Act, would be valid and registerable under the Marriage Act and the Identification Act.

The judgment observes that counsel for the applicants had referred to the Discussion Paper 104 published by the South African Law Reform Commission (SALRC), which is devoted to the topic of Domestic Partnerships. The Paper contains proposals prepared by the SALRC aimed at harmonising family law with the provisions of the Bill of Rights and the constitutional values of equality and dignity. The SALRC considers as unconstitutional the fact that there is currently no legal

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