and a set of entitlements and responsibilities on a par with those enjoyed by heterosexual couples. It follows that, given the centrality attributed to marriage and its consequences in our culture, to deny same-sex couples a choice in this respect is to negate their right to self-definition in a most profound way.[1]
[73]Equally important as far as family law is concerned, is the right of same-sex couples to fall back upon state regulation when things go wrong in their relationship. Bipolar by its very nature, the law of marriage is invoked both at moments of blissful creation and at times of sad cessation. There is nothing to suggest that same-sex couples are any less affected than are heterosexual ones by the emotional and material consequences of a rupture of their union. The need for comprehensive judicial regulation of their separation or divorce, or of devolution of property, or rights to maintenance or continuation of tenancy after death, is no different. Again, what requires legal attention concerns both status and practical regulation.
[74]The law should not turn its back on any persons requiring legal support in times of family breakdown. It should certainly not do so on a discriminatory basis; the antiquity of a prejudice is no reason for its survival. Slavery lasted for a century and a
- ↑ The literature also indicates that the gay and lesbian experience in South Africa is extremely varied. Thus in the Introduction to Sex and Politics in South Africa Hoad, Martin and Reid (ed) (Double Storey, Cape Town, 2005), Hoad writes:
“Letties, moffies, stabanes, skesanas, injongas … make their own history but under conditions that are not of their making. Our list of identifying terms is far from comprehensive and each item on that list indicates a different configuration of identity, desire, practice, possibility, held together by the phrase ‘sexual orientation’ in the South African Constitution—the meaning of which is continually being revised by the South African courts.”
He adds that significant legislative victories have been won, also affecting the meaning of the phrase. (At 19.)
