challenging the provisions of the Marriage Act and other statutes.
Should our order be suspended?
[38]Having concluded that the common law should be developed, Farlam JA proposes to suspend the order for two years. I cannot agree. The suggested suspension is in my respectful view neither appropriate nor in keeping with principle, the justice of this case, or the role the Constitution assigns to courts in developing the common law. It is in my view also not logical to hold that developing the common law does not stray into the legislative domain, as Farlam JA rightly holds, but then to suspend the order as though it did.
[39]First the Constitution. As suggested earlier, development of the common law entails a simultaneously creative and declaratory function in which the court perfects a process of incremental legal development that the Constitution has already ordained. Once the court concludes that the Bill of Rights requires that the common law be developed, it is not engaging in a legislative process. Nor in fulfilling that function does the court intrude on the legislative domain.
