Abstract
Late last year the Constitutional Court of South Africa decided that the exclusion of same-sex couples from the common law definition of marriage and the statutory marriage formula was unconstitutional as it violated the rights of such couples to equality. The Court suspended the declaration of invalidity for one year to allow Parliament to enact new legislation to correct the defects, failing which certain words would be read into the legislation to accommodate same-sex marriage. A single judge dissented on the issue of remedy, finding that the Court should have developed the common law to include same-sex couples within the definition of marriage and read the necessary wording into the legislation with immediate effect. The decision is the culmination of a legal struggle by gays and lesbians for recognition of their relationships and the protection of their rights. While the scope of the right to marry may have been extended, the rights of domestic partners lag behind, often to the detriment of women in these relationships.
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Acknowledgments
Thanks to Cathi Albertyn, Jonathan Berger and Paul Jammy for their helpful comments on this note. I would like to acknowledge the enormous contribution of the late Professor Ronald Louw to the struggle for the rights of gays and lesbians in South Africa.
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Minister of Home Affairs and Another v. Fourie and Another, with Doctors for Life International (first amicus curiae), John Jackson Smyth (second amicus curiae) and Marriage Alliance of South Africa (third amicus curiae) Case C.C.T. 60/04, decided on 1 December 2005
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Goldblatt, B. Case note: Same-sex Marriage in South Africa –the constitutional Court's Judgment. Feminist Legal Stud 14, 261–270 (2006). https://doi.org/10.1007/s10691-006-9030-1
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DOI: https://doi.org/10.1007/s10691-006-9030-1