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In the meanwhile, the Lesbian and Gay Equality Project had also launched a separate lawsuit directly attacking the constitutionality of the Marriage Act, which was originally to be heard in the Johannesburg High Court; the Constitutional Court granted the Project's request to have it heard and decided simultaneously with the Fourie case.
On 1 December 2005, the Constitutional Court handed down its decision: the nine justices agreed unanimously that the common-law definition of marriage and the marriage formula in the Marriage Act, to the extent that they excluded same-sex partners from marriage, were unfairly discriminatory, unjustifiable, and therefore unconstitutional and invalid.
These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships: In 2002, a lesbian couple, Marié Fourie and Cecelia Bonthuys, with the support of the Lesbian and Gay Equality Project, launched an application in the Pretoria High Court to have their union recognised and recorded by the Department of Home Affairs as a valid marriage.
Judge Pierre Roux dismissed the application on 18 October 2002, on the technical basis that they had not properly attacked the constitutionality of the definition of marriage or the Marriage Act, 1961.
The 2 main characters recount their truth in regards of the forming of "the affair" with a crime mystery in the background as an excuse to do so .
It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples." There was some disagreement about the remedy: the majority (eight of the justices) ruled that the declaration of invalidity should be suspended for a year to allow Parliament to correct the situation, as there were different ways in which this could be done, and the Law Reform Commission had already investigated several proposals.Fourie and Bonthuys therefore appealed the High Court judgment to the SCA, which handed down its decision on 30 November 2004.The five-judge court ruled unanimously that the common-law definition of marriage was invalid because it unconstitutionally discriminated on the basis of sexual orientation, and that it should be extended to read "Marriage is the union of two persons to the exclusion of all others for life." The court further unanimously noted that because Fourie and Bonthuys had not challenged the Marriage Act, the court could not invalidate it, and, therefore, their marriage could not immediately be solemnized.The court divided, however, on whether the couple should be given an immediate remedy in implementing the new, wider common-law definition of marriage.The majority opinion, written by Judge Edwin Cameron, ruled that the new definition should apply immediately.
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