Page:Minister of Home Affairs v Fourie.djvu/16



Rh recognition of same-sex relationships. It proposes that same-sex relationships should be acknowledged by the law and identifies three alternative ways of effecting legal recognition to such relationships, viz (a) opening up the common law definition of marriage to same-sex couples by inserting a definition to that effect in the Marriage Act; (b) separating the civil and religious elements of marriage, by amending the Marriage Act to the extent that it will only regulate the civil aspect of marriage, namely the requirements and the consequences prescribed by law and by providing in it for civil marriage of both same- and opposite-sex couples; and (c) providing what is called a ‘marriage-like alternative’ according same-sex couples (and possibly opposite sex couples) the opportunity of concluding civil unions with the same legal consequences as marriage.

Farlam JA stated that only the first option is available to the courts, but only if it can be regarded as an incremental step. In the year 2004, and in the present circumstances the development of the common law cannot be regarded as a fundamental change. He said that Parliament has over the years since 1994 enacted numerous provisions giving recognition, in some cases expressly and in others impliedly, to same-sex partnerships. These enactments evidence an awareness on the part of Parliament of the changing nature of the concept of the family in our society. He added that until recently the principle of legal equality between the spouses had not been enshrined in our law. The rules forming part of our matrimonial relations

Rh