[125]With the exception of the rule in Frankel's case no problems will be encountered in applying the rules governing the relations between husbands and wives to partners in a same-sex union. I do not believe that the impossibility of applying the rule in Frankel's case to same-sex unions would give rise to insoluble problems.[1] The existence of this problem would not constitute a reason for refusing to extend the definition in the way we have been asked to do.
[126]Although counsel for the respondent did not contend that an inability on the part of parties to a same-sex union to procreate with each other was a basis for refusing to grant the extension of the definition sought, he did say, as I indicated earlier, that procreation is one of the characteristics going together to make up marriage. In one of the minority judgments in the Massachusetts decision to which I referred above,[2] Cordy J, with whom Spina and Sosman JJ concurred, said:
‘The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to
- ↑ For a possible solution to the problem see the article by Elsabe Schoeman entitled ‘The South African conflict rule for proprietary consequences of marriage: learning from the German experience’ 2004 TSAR 115.
- ↑ Goodridge and Others v Department of Public Health and Another, supra.
