key to the study guide - Name

Persons already
married
2.3 Lawfulness
A marriage is not valid unless it is lawful for the parties to marry.
On page 30 of your textbook it is explained that a man or a woman who is
already married cannot take a second spouse while the marriage still exists.
It is important to remember that this rule only applies to civil marriages.
On page 30 of the textbook it is pointed out that in our country many
people marry in terms of other systems of law which permit a man to take
more than one wife.
Persons of same sex You will further see on page 30 of the textbook that a man may not marry
a man, and a woman may not marry a woman. In this regard, you should
take note of the supreme court of appeal's decision in Fourie v Minister of
Home Affairs 2005 (3) BCLR 241 (SCA), which was delivered after
publication of Cronje and Heaton's work, South African family law. In
Fourie, the supreme court of appeal held that the common-law definition
of ``marriage'' was unconstitutional to the extent that it restricted
marriage to persons of the opposite sex. The court developed the definition
to open up marriage to persons of the same sex. The court expressly added
that same-sex couples must meet the requirements set by the Marriage Act
25 of 1961 for a valid marriage. As the prescribed marriage formula in the
Marriage Act refers to ``husband'' and ``wife'' same-sex couples can still
not be married by a marriage officer who uses that particular marriage
formula. The Marriage Act however allows marriage officers who are
ministers of religion or who hold a responsible position in a religious
denomination or organisation to follow the marriage formula which is
usually observed by that denomination or organisation if the particular
formula has been approved by the Minister of Home Affairs. In the past,
the Minister of Home Affairs refused to approve marriage formulae that
referred to same-sex couples. Once a religious denomination or organisation
has acquired the Minister's approval of its marriage formula it will be
able to marry same-sex couples. No religious denomination or organisation
will however be compelled to marry same-sex couples. Until such time as
the Marriage Act is amended same-sex couples who do not wish to have a
religious marriage ceremony will not be able to get married. (The supreme
court of appeal did not consider the constitutionality of the marriage
formula in the Marriage Act, as the parties did not dispute the
constitutionality of the Act.) This state of affairs clearly amounts to
inequality before the law and unequal protection and benefit of the law,
which violates section 9 of the Constitution. However, the position may
soon change, as the Minister of Home Affairs has lodged an appeal against
the supreme court of appeal's decision.
Marriage of transsexual
On page 31 your textbook further explains the difficulties which arise in
respect of validity when a person who has undergone a sex-change
operation marries.
47