[3]They contend that the exclusion comes from the common law definition which states that marriage in South Africa is “a union of one man with one woman, to the exclusion, while it lasts, of all others.”[1] The common law is not self-enforcing, and in order for such a union to be formalised and have legal effect, the provisions of the Marriage Act[2] have to be invoked. This, as contended for in the second case,[3] is where the further level of exclusion operates. The Marriage Act provides that a minister of religion who is designated as a marriage officer may follow the marriage formula usually observed by the religion concerned.[4] In terms of section 30(1) other marriage officers must put to each of the parties the following question:
“‘Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?’, and thereupon the parties shall give each other the right hand and the marriage officer concerned shall declare the marriage solemnized in the following words: ‘I declare that A.B. and C.D. here present have been lawfully married.’” (My emphasis.)
The reference to wife (or husband) is said to exclude same-sex couples. It was not disputed by any of the parties that neither the common law nor statute provide for any
- ↑ As articulated by Innes CJ in Mashia Ebrahim v Mahomed Essop 1905 TS 59 at 61. In other cases the exclusion is said to be “for life”. See for example Hyde v Hyde and Woodmansee 1866 LR 1 P and D 130 at 133; Seedat’s Executors v The Master (Natal) 1917 AD 302 at 309 and Ismail v Ismail 1983 (1) SA 1006 (A) at 1019. Given the high degree of divorce this would seem to be a misnomer.
- ↑ Act 25 of 1961.
- ↑ Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others CCT 10/05.
- ↑ Section 30(1) states in this regard:
“[A]ny marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organization if such marriage formula has been approved by the Minister ….”
