[120]We no longer condemn sodomy.[1] It follows that a major reason given by jurists from the Roman Dutch era for the heterosexual requirement in the definition has now fallen away.
[121]Until comparatively recently there were other reasons precluding the recognition in our law of same-sex marriages. Because the principle of legal equality between the spouses was not enshrined in our law there were many rules forming part of our law of matrimonial relations which put the husband in a superior position and the wife in an inferior one. The law could thus not easily accommodate same-sex unions because, unless the partners thereto agreed as to who was to be the ‘husband’ and who the ‘wife’, these rules could not readily be applied to their union.
[122]Thus it was a consequence of a marriage in our law that the husband had (a) power as head of the family, which meant that he had the decisive say in all matters concerning the common life of the parties, with the result, amongst other things that the wife automatically acquired her husband's domicile; (b) marital power over the person of his wife, by which was meant in modern times
- ↑ See S v Kampher, supra, approved by the Constitutional Court in National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) in which it was held that the criminal offence of sodomy was unconstitutional.
