“If I happen to be in an accident and I become a vegetable, I would like my partner to have a right to my belongings,” says Darren Hayward, a gay South African who has been in a committed relationship for the past six years.
He cannot marry his partner legally yet, which would allow for such an inheritance — but gay and lesbian South Africans are looking forward to good news from the Constitutional Court later this year regarding same-sex marriages.
“I’m very excited about [same-sex marriages] being legalised,” says Hayward.
The case has been contested in court since last year and could make South Africa only the fifth country in the world to condone such marriages.
On July 8 last year, an application was filed with the Johannesburg High Court by the Lesbian and Gay Equality Project, Cape Town’s Triangle Project, the Durban Lesbian and Gay Health Centre, Johannesburg’s Forum for the Empowerment of Women, Pretoria’s OUT and seven same-sex couples.
They proposed that the common-law definition of marriage be declared unconstitutional, which would enable same-sex marriages to take place.
Nonhlanhla Mkhize, the manager of the Durban Gay and Lesbian Society, says: “We are currently expecting [the Constitutional Court] judgement on this issue. They have to decide whether to legalise gay marriages or not.”
Mkhize estimates that openly gay and lesbian people in South Africa form 10% of the population.
Esau Mathope, the editor of Behind the Mask, a website about gay and lesbian affairs in Africa, says this court case is not about getting a religious blessing.
“In essence, what this court case is about is to get the same privileges that heterosexuals do. What gay and lesbian people are saying through this case is that they want to be recognised,” he says.
The Constitution states that gay, lesbian, bisexual and transgender individuals have the same rights as any other individual. Section 9 of the Constitution outlaws discrimination in South Africa based on sexual orientation.
However, same-sex partners cannot inherit assets on their partners’ deaths, compared with heterosexual marriages that are entered into in community of property. They can, however, protect themselves by drafting a will and entering into a domestic partnership agreement.
Various legislative reforms already won for same-sex couples in South Africa include victories such as:
- the decriminalisation of sodomy (1998);
- immigrant partners of lesbian and gay people are allowed and can now apply for permanent residence on the basis of a same-sex relationship with a South African partner (1999);
- same-sex couple adoption (2002);
- domestic partner benefits, and lesbian women can now turn to artificial insemination and have their partner registered as a parent of that child (2003).
However, not everyone will be pleased by a positive judgement from the Constitutional Court, especially religious organisations firmly opposed to same-sex marriages.
Father Efrem Tresoldi, of the Southern African Catholics Bishops’ Conference, says: “We hold a vision that marriage should be kept for heterosexuals.”
He respects other people’s beliefs, but feels the word “marriage” should be kept in a heterosexual frame of reference.
Tresoldi adds that a marriage is linked to the fact that a union is made to “procreate”. When asked about lesbians who use artificial insemination, he replied: “It is done in an artificial way. We are talking about a natural sort of way.”
Julia Grey, a lesbian woman who has an adopted son, says: “One thing I find particularly hilarious are the holier-than-thou heterosexual fundamentalists who are liable to say things like, ‘But it’s trashing the sacred, God-endorsed institution of marriage, threatening the very moral fibre and foundation of civilisation!'”
“There’s a certain satisfaction to be had when the institutions — like the courts — that adjudge what’s acceptable, or otherwise, for society give no weight to such drivel,” adds Grey.
Grey doubts whether she would get married if marriages do become legal in South Africa.
“I don’t really buy into the marriage institution at the best of times. My partner and I are already committed to our relationship, so going through a legal process or making some public declaration of our union seems like a waste of time.
“Marriage really seems more like a symbolic gesture, a ritual of declaring your union in public and getting society’s endorsement of it. I think there is ceremonial value in that, but in terms of really concrete benefits, going through the marriage motions doesn’t seem worth the hassle. But maybe I would, for the party afterwards.
“I think it is absolutely necessary and totally right that gay couples have the option to marry if they so chose. In a sense, it’s also an important validation from the state and society for such relationships,” she said.
The only countries to condone same-sex marriages are The Netherlands, Belgium, Canada and Spain.