The South African Constitutional Court has ruled that the country's current marriage laws violate the constitution by preventing legal marriages between same sex couples. The effect of the judgment means that same sex couples could be able to legally wed in 12 months.
The constitutional court has given South Africa's parliament 12 months to change the legal definition of marriage that limits legal unions to husband and wife. If parliament fails to meet this deadline, the court has ruled the gender-neutral word spouse would be automatically added to the Marriage Act.
The court also ruled as constitutionally invalid the common-law definition of marriage. In delivering the court's decision Judge Albie Sachs said the definition as now written prevents same-sex couples from enjoying the same status, benefits, and responsibilities it accords heterosexual couples.
In addition to marriages under these laws, South Africa has several other types of marriage that in recent years have been legally recognized. These include marriages concluded in traditional practices and under Islamic law.
In considering the issue, the court took into account a proposal for future marriage law from the South African Law Reform Commission.
The commission has conducted research into South Africa's many marriage practices and has proposed a new, overarching law, to accommodate them all. The proposal also takes into consideration the demands of the constitution that all people are treated equally by the law, regardless of race, gender, belief or sexual orientation.
Without delivering a direct instruction to parliament, the court pointedly reminded legislators that they are the front-line to ensure that South African law lives up to the constitution and the rights it bestows. The court suggested instead of a brief amendment to current legislation, parliament may wish to consider enacting new legislation along the lines of that proposed by the Law Reform Commission.
This is not the first time that South Africa's highest court has made a ruling that protects the rights of same sex couples. In 2001, the court ruled that the same sex partner of a high court judge, was entitled to the same rights and privileges, including membership in health and retirement funds, as the legal spouses of other judges.
The decision has dismayed opponents of same sex relationships. Some gay rights advocates have also expressed disappointment that the court has given parliament 12 months to change the law. But others have welcomed it, saying that for the first time they and their partners will be no different to heterosexual couples.