“16(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 16(2) Marriage shall be entered into only with the free and full consent of the intending spouses. 16(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
Similar provisions from a number of different instruments were referred to, as was a decision of the United Nations Human Rights Committee to the effect that a New Zealand law denying marriage licences to same-sex couples does not violate the International Covenant on Civil and Political Rights[1] (ICCPR). Support for the argument was sought from the provision in our Constitution requiring that customary international law be recognised as part of the law in the Republic[2] and that when interpreting the Bill of Rights a court must consider international law.[3]
[100]The reference to “men and women” is descriptive of an assumed reality, rather than prescriptive of a normative structure for all time. Its terms make it clear that the principal thrust of the instruments is to forbid child marriages, remove racial, religious
- ↑ In Joslin v New Zealand (Communication No 902/1999) (17 July 2002), the Committee stated:
“The treaty obligation of States … is to recognise as marriage only the union between a man and a woman wishing to be married to each other.”
- ↑ Section 232 of the Constitution states that:
“Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”
- ↑ Section 39(1)(b) of the Constitution states that:
“(1) When interpreting the Bill of Rights, a court, tribunal or forum—
…(b) must consider international law …”
