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Same-sex marriage approved in South Africa.

A lesbian couple's appeal to the South African Supreme Court of Appeal to have their marriage legally recognised and registered succeeded in November 2004. The court, in a majority decision, declared that under the Constitution, the common law concept of marriage was to be developed to embrace same-sex partners.


The appeal, brought by Marie Fourie and Cecelia Bonthuys, in essence challenged the definition of marriage under South African common law. According to common law, marriage was the union of one man and one woman. This made it impossible for same-sex couples to be married to each other.

Judge of Appeal Edwin Cameron said in his judgment that the definition of marriage should read: "Marriage is the union of two persons to the exclusion of all others for life." The court also declared that the intended marriage between Fourie and Bonthuys was capable of lawful recognition as a legally valid marriage, provided the formalities in the Marriage Act of 1961 were complied with.

Evert Knoesen of the Gay and Lesbian Equality Project said the organisation was happy with the decision. He said in principle, same-sex marriages could now be recognised but various statutory stumbling blocks, which regulated marriage, still had to be sorted out. Knoesen said his organisation, in conjunction with various other parties, had already field an application in the Johannesburg High Court challenging the statutory regulations. The case will be heard early next year, unless parliament acts first to change the regulations, as was ordered in the court judgment.

The Reverend Molefi Tsele, general secretary of the SA Council of Churches, said the SACC would have to live with the decision as it was based on the constitution. The ruling was "not in line" with the traditions and teachings of member churches. "It is a situation that is still foreign to the core teachings of our member churches," Tsele said. "We, however, respect the fact that it is based on our constitution, to which we ascribe, and it is designed to protect the rights of people irrespective of their sexuality. We have to live with the difficulty."

The legalisation of same-sex marriages has far-reaching consequences for the state and employers. Advocate Liesl Gerntholtz, former head of the Commission on Gender Equality's legal department, said same-sex marriages would be recognised on the same legal basis as heterosexual marriages. "All the consequences that flow from a heterosexual marriage will apply to a same-sex marriage," she said. "The spouse will be entitled to inheritance, benefits from the medical aid, and to the spouse's pension." Two years ago, gay couples were given the right to adopt children.

Source: Behind the Mask website, 30 November 2004 (
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Title Annotation:NEWS CLIPPINGS
Publication:Sister Namibia
Geographic Code:6NAMI
Date:Dec 1, 2004
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