During the pre-constitutional era, a civil marriage in terms of the Marriage Act 25 of 1961 between two heterosexual persons was the only family form recognised by South African law. The common-law definition of marriage did not make provision for same-sex marriage and consequently deprived same-sex couples of certain benefits that accrue to married couples. The introduction of a new constitutional order with the constitutional commitment to human dignity and equality and the inclusion of sexual orientation as a prohibited ground of discrimination in terms of section 9(3) of the Constitution, created a fertile ground for homosexuals to question the validity and constitutionality of the common law definition of marriage and certain statutes that excluded them from recognition during the pre-constitutional dispensation. This led to the recognition of same-sex life partnerships and, inevitably, same-sex marriage by means of a Civil Union Act 17 of 2006.
The object of this study was to investigate whether and to what extent there are grounds to consider the Civil Union Act unconstitutional. The constitutional inquiry will include a critical analysis of the effect of the Act on the constitutional rights of same-sex couples. The main issue will be whether the Act achieved what the Constitutional Court in Minister of Home Affair v Fourie 2006 1 SA 542 (CC) required the legislator to do, namely to afford same-sex couples the same status, benefits and responsibilities accorded to opposite-sex couples. This investigation is conducted with reference to relevant legislation, comments of various authors and case law.
The dissertation concludes by recommending that both heterosexual couples and same-sex couples should be provided with a single statute to formalise their marriage. In this regard, it is suggested that a repeal of the Civil Union Act with a concomitant expansion of the Marriage Act to accommodate the solemnisation and registration of marriage for both heterosexual and same-sex couples should be the preferred option. The Marriage Act should be secular in nature and should include the registration of domestic partnerships.