which put the husband in a superior position and the wife in an inferior one are no longer part of our law.[1]
[30]In respect of the contention that applicants are debarred from seeking relief because they did not challenge the constitutional validity of section 30(1) of the Marriage Act, he held that there is no section in the Marriage Act that expressly approves the common law definition of marriage. Section 30(1), according to Farlam JA, cannot be regarded as placing what may be called a ‘legislative imprimatur’ on that definition. What has happened is that the marriage formula contained in the Act was framed on the assumption that the common law definition of marriage was correct, which it was in 1838[2] and in 1961. He found that the formula can be changed by a process of innovative and ‘updating’ statutory interpretation by reading “wife (or husband)” in this provision as “spouse”.
[31]Farlam JA therefore supported an order declaring that the intended marriage between the applicants, provided that it complies with the formalities set out in the Marriage Act, would be capable of being recognised as a legally valid marriage. He
- ↑ He pointed out that 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. Sections 29 and 30 of the General Law Fourth Amendment Act 132 of 1993, however, abolished the husband’s marital power over his wife’s person and property in respect of all marriages to which it applied, and also his power flowing from his position as head of the family. The only common law rule which makes it necessary to be able to identify the husband and which still forms part of our law of matrimonial law, is the rule which provides that the proprietary consequences of a marriage are determined, where prospective spouses have different domiciles, by the law of the domicile of the husband at the time of the marriage. All other rules apply equally to spouses. Farlam JA stated that he does not believe that the impossibility of applying this rule to same-sex unions would give rise to insoluble problems. The existence of this problem, he held, would not constitute a reason for refusing to extend the definition in the way that the SCA had been asked to do.
- ↑ The Marriage Order in Council. See para 24 above.
