Page:Minister of Home Affairs v Fourie.djvu/35

 Rh discriminatory. Madala J pointed out that marriage was a matter of profound importance to the parties, and indeed to their families, and was of great social value and significance. Historically, however, our law had only recognised marriages between heterosexual spouses, and this narrowness of focus had excluded many relationships which created similar obligations and had a similar social value. Inasmuch as the provisions in question afforded benefits to spouses but not to same-sex partners who had established a permanent life relationship similar in other respects to marriage, including accepting the duty to support one another, such provisions, he held, constituted unfair discrimination.

In Du Toit, the issue flowed from a provision in child care legislation which confined the right to adopt children jointly to married couples. Holding that the exclusion of same-sex life partners conflicted both with the best interests of the child and the right to dignity of same-sex couples, Skweyiya AJ emphasised that family life as contemplated by the Constitution could be provided in different ways, and that legal conceptions of the family and what constituted family life should change as social practices and traditions changed. He pointed out further that it was a matter of our history, and that of many countries, that same-sex relationships had been the

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