south african court recognises same-sex marriage

Saturday 17 December

On 1 December 2005, the Constitutional Court of South Africa ruled that the exclusively heterosexual definition of marriage is unconstitutional. This follows a similar decision in Canada and the introduction of same-sex marriage in Holland, Belgium and Spain. 

In the case of the Minister of Home Affairs v Fourie & Bonthuys, the Constitutional Court of South Africa held that the exclusively heterosexual definition of marriage, in both the common law and the Marriage Act, violated the constitutional guarantee of equality for all South Africans. 

The common law definition will now be "the union of two people", rather than "the union of one man and one woman". The question posed at a wedding will become "“Do you AB…call all here present to witness that you take CD as your spouse", rather than " your lawful wife (or husband)?”. 

These changes to South African law will take place in 12 months time. The delay was ordered by the Court to give Parliament time to make the necessary changes to the law. 

The decision was made possible because South Africa has a constitutional Bill of Rights that guarantees that every South African will be treated equally by the law. A law that excludes some South Africans from marrying is therefore unconstitutional. 

Unlike in South Africa (and Canada), Australia does not have a Bill of Rights. That means that the recent discriminatory changes to the Marriage Act in Australia cannot be struck down by the High Court. 

In 2004, the New South Wales Council for Civil Liberties passed a resolution at its AGM supporting the right of all adult Australians to marry the person of their choice.