[62]These may seem purely abstract statements. Yet the impact of the legal void in which same-sex couples are compelled to live is real, intense and extensive. To appreciate this it is necessary to look precisely at what it is that the law offers to heterosexual couples, and, conversely, at what it denies to same-sex couples. Such scrutiny establishes that the consequences of the total exclusion of same-sex couples from the solemnities and consequences of marriage are far from academic, as the following section shows.
The significance of marriage and the impact of exclusion from it
[63]It is true that marriage, as presently constructed under common law, constitutes a highly personal and private contract between a man and a woman in which the parties undertake to live together, and to support one another. Yet the words ‘I do’ bring the most intense private and voluntary commitment into the most public, law-governed and state-regulated domain.[1]
[64]Though freely entered into by the parties, marriage must be undertaken in a public and formal way and once concluded it must be registered. Formalities for the celebration of a marriage are strictly set out in the Marriage Act. A marriage must be conducted by a marriage officer, to whom objections may be directed. If objections to the marriage are lodged, the marriage officer must satisfy herself or himself that there are no legal obstacles to the marriage. Those wishing to get married must produce copies of their identity documents, or alternatively make affidavits in the prescribed
- ↑ The summary that follows below is reproduced (without footnotes) from the judgment of Mokgoro and O'Regan JJ in Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC) at paras 112–8.
