The right to remain married : positioning homosexual-transsexual marriages under the South African Marriage Act 25 of 1961

Magister Legum - LLMFor many, the human rights which South Africa has been able to secure for LGBTI (lesbian, gay, bisexual, transgender and intersex) people has been very progressive. However, with the conflation of sexual orientation and gender identity, the assumption of access to human rights for all within the LGBTI and society at large, has led to transsexual people not being able to claim their rights and assert their existence as human beings effectively within our constitutional democracy. Currently, there is a vacuum in South Africa's law of marriage based on its inability to accommodate spouses who married as a 'heterosexual' couple but where the one spouse subsequently undergoes gender affirmation, conforming the relationship to what is perceived as 'homosexual'. On account of this, the Department of Home Affairs are subjecting these couples to compulsory or forced divorces by refusing to have the transsexual spouse recognised within his or her affirmed gender on the marriage certificate. This means that the transsexual spouse either remains married under the Marriage Act and is subject to being recognised as his or her birth-sex, or submits to a compulsory or forced divorce in order to be recognised as his or her affirmed sex on a marriage certificate issued under the Civil Union Act upon them 'remarrying'. This thesis addresses the inequalities and inequities brought about by the Marriage Act. It investigates the history of marriages within South Africa that were prohibited based on characteristics such as race which people have no control over. It looks at how the State, through its departments, has imposed itself on the social relationships people formed subject to its legal terms and conditions. This thesis questions whether the State through its action is acting in a way that is administratively just. It argues that the successfulness of a divorce decree is dependent on at least one party voluntary applying for it. This presupposes the idea that whenever couples who are validly married are forced or compelled to divorce one another that this, in fact, cannot be seen as one of the valid ways in which to obtain a divorce decree legally. Before venturing into the legal aspect concerning this research topic, a theoretical framework will be advanced to position these couples in a greater social context. Subsequently, in order to establish the legal position of these couples, this thesis will draw on the current South African human rights discourse that has been developed by and for the LGBTI community, especially as it relates to the law of marriage. It will also establish the international and foreign human rights discourses that assert or, at least, seek to assert LGBTI human rights broadly. Ultimately, a constitutional analysis will be conducted to establish the position of these couples under the Marriage Act