Page:NCGLE v Minister of Home Affairs.djvu/83

Rh presented to it and not as a matter of abstract constitutional adjudication. When a statutory provision has been partially invalidated by way of notional severance, the hypothetical possibility always exists that subsequently, because of the issues and contentions then placed before the court, the ambit of the constitutional invalidity might have to be extended. Likewise, after reading in matter to cure a constitutionally invalid under-inclusive provision, the possibility exists that, for identical reasons, a court may have to extend the reading in, in order to cure the constitutional invalidity. There is in principle no difference between these two possibilities. The conclusion I have reached in this case is that section 25(5) is unconstitutional in that it fails to include within its benefits a group entitled to such benefits. The order to be made affords relief to such group. This does not mean that other groups are not entitled to the benefits provided by section 25(5).

Whoever in the administration of the Act is called upon to decide whether a same-sex life partnership is permanent, in the sense indicated above, will have to do so on the totality of the facts presented. Without purporting to provide an exhaustive list, such facts would include the following: the respective ages of the partners; the duration of the partnership; whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership, what the nature of that ceremony was and who attended it; how the partnership is viewed by the relations and friends of the partners; whether the partners share a common abode; whether the partners own or lease the common abode jointly; whether and to what extent the partners share responsibility for living expenses and the upkeep of the joint home; whether and to what extent one partner provides financial support for the other; whether and to what extent the partners have made provision for one another in relation to medical, pension and related Rh