## Facts

- Two women in a long-term committed relationship sought the ability to marry under South African law and obtain the same public legal status and responsibilities as opposite-sex spouses.
- South African common law defined marriage as a union between one man and one woman, and the Marriage Act’s civil formula referred to “lawful wife (or husband),” which in practice excluded same-sex couples.
- One matter challenged the state’s refusal to permit the couple to marry; a parallel matter challenged the Marriage Act provision prescribing the “wife/husband” formula.
- The Constitutional Court consolidated the matters to determine whether the common-law definition and the relevant statutory provision unconstitutionally excluded same-sex couples from civil marriage and what remedy should follow.

## Issues

1. Whether excluding same-sex couples from civil marriage under the common-law definition of marriage and the Marriage Act violates constitutional rights to equality and dignity, including the prohibition on discrimination based on sexual orientation.
2. If unconstitutional, what remedy is appropriate: immediate judicial modification (including reading-in) or a suspended declaration of invalidity allowing Parliament time to enact corrective legislation.

## Decision

- The Court unanimously held that the common-law definition of marriage and the challenged Marriage Act provision were unconstitutional and invalid to the extent they excluded same-sex couples from the status and benefits of civil marriage.
- The Court found the exclusion constituted unfair discrimination based on sexual orientation and impaired the dignity of same-sex couples by denying equal social and legal recognition.
- By an 8–1 majority, the Court suspended the declaration of invalidity for 12 months to allow Parliament to enact a constitutionally compliant legislative solution.
- The Court ordered that if Parliament did not act within the suspension period, the Marriage Act would automatically be treated as including language enabling same-sex couples to marry under the existing framework.
- A partial dissent would have granted immediate relief by judicially amending the statutory scheme without a suspension.

## Legal Principles

- Constitutional equality and dignity protections prohibit the state from excluding same-sex couples from the civil status, benefits, and responsibilities attached to marriage.
- Where legislation does not give effect to a constitutional right, courts must develop the common law to promote the purposes of the Bill of Rights and eliminate unconstitutional exclusions.
- Civil marriage is a state-governed legal institution subject to constitutional norms; recognition of civil marriage equality does not compel religious bodies to alter religious doctrine or rites.
- Remedies for constitutional violations may include declarations of invalidity and reading-in, and may be suspended to permit legislative action where implementing a comprehensive scheme involves policy choices suited to the legislature, provided effective relief is ensured if the legislature fails to act.

## Conclusion

The Constitutional Court held that limiting civil marriage to opposite-sex couples violates constitutional equality and dignity and is invalid to that extent, suspending invalidity for 12 months to permit legislative correction while providing an automatic judicial fallback to secure timely access to civil marriage for same-sex couples.


Minister of Home Affairs v. Fourie, 2006 (1) S. Afr. L. Rep. 524 (S. Afr. Const. Ct. 2005)