law definition of marriage actually contains. Nor has there been any suggestion that the formula in the Marriage Act intrinsically violates the Constitution as far as it goes. Indeed, there is no reason why heterosexual couples should not be able to take each other as husband and wife. The problem is not what is included in the common law definition and the Act, but what is left out. The silent obliteration of same-sex couples from the reach of the law, together with the utilisation of gender-specific language in the marriage vow, presupposes that only heterosexual couples are contemplated. The formula makes no allowance for an equivalent public declaration being made by same-sex couples, with all the legal and cultural consequences that would flow from it.
[118]As I have already concluded, the common law and section 30(1) of the Marriage Act are inconsistent with sections 9(1) and 9(3) and 10 of the Constitution to the extent that they make no provision for same-sex couples to enjoy the status, entitlements and responsibilities it accords to heterosexual couples. In terms of section 172(1)(a) of the Constitution, this Court must that declare any law inconsistent with the Constitution is invalid to that extent. Under section 172(1)(b) it is then open to the Court to make any order that is just and equitable. Such order may include suspending the declaration of invalidity to give the legislature time to cure the defect.
[119]Before considering what order would be just and equitable, it is important to note that the SCA decision in Fourie that has been appealed against, has been overtaken and to a considerable extent superseded by our decision to hear the Equality
