Fourie v Minister of Home Affairs

The appellants, Marié Adriaana Fourie and Cecelia Johanna Bonthuys, were two adult women in a committed, permanent same‑sex life partnership who sought to be married under South African law. They did not challenge the Marriage Act 25 of 1961 directly, but instead applied for the development of the common law definition of marriage so as to include same‑sex couples, in line with the Constitution. The Pretoria High Court dismissed their application, holding that the relief sought was incompatible with the Marriage Act. The appellants appealed to the Supreme Court of Appeal, supported by the Lesbian and Gay Equality Project as amicus curiae.

The appeal was upheld. The common law definition of marriage was developed to include same‑sex partners. The order developing the common law was not suspended, thereby allowing same‑sex couples immediate access to marriage at common law.

This case was a major step in the constitutional recognition of same‑sex relationships in South Africa. It affirmed the judiciary’s duty to develop the common law in accordance with constitutional values and laid crucial groundwork for the Constitutional Court’s later decision confirming the right of same‑sex couples to marry. It reinforced equality jurisprudence relating to sexual orientation and underscored marriage as an institution central to dignity, autonomy and moral citizenship.