Potchefstroom Electronic Law Journal (Jun 2004)
Same-sex marriage in South Africa: The road ahead
Abstract
The status of same-sex partnerships is currently a hotly debated issue in various jurisdictions and also in South Africa. Section 9 of the Bill of Rights in the Constitution of the Republic of South Africa2 prohibits unfair discrimination by the State, inter alia, on grounds of gender, sex and sexual orientation. The question that arises is whether the legal definition of marriage, being a relationship between one man and one woman, constitutes discrimination, and if so, whether such discrimination is unfair. The legal position has become acute in South Africa. Legal uncertainty prevails with regard to the legal status of such couples. Various applications have been brought before branches of the High Court and the Constitutional Court for relief relating to particular personal and patrimonial consequences of marriage. In some cases the respective courts had to establish on an ad hoc basis whether a long term relationship indicative of a marriage-like relationship existed in order to bestow the particular relief requested by the applicant couple. The very fact that an ad hoc determination has to be made because, of course, there is no celebration of a valid marriage creates an untenable situation for such couples. The question posed above, forms the focal point of serious, and often insulting, legal debate. This contribution endeavors to give a brief overview of the various viewpoints, and thereafter to add to the debate.
