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On 24 August 2006, the Cabinet approved the Civil Union Bill for submission to Parliament.The bill as initially introduced would only have allowed civil partnerships which would be open only to same-sex couples and have the same legal consequences as marriage.

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Same-sex marriage has been legal in South Africa since the Civil Union Act came into force on 30 November 2006.

The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes.

In a widely quoted passage from the majority ruling, Justice Albie Sachs wrote: "The exclusion of same-sex couples from the benefits and responsibilities of marriage, accordingly, is not a small and tangential inconvenience resulting from a few surviving relics of societal prejudice destined to evaporate like the morning dew.

It represents a harsh if oblique statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.

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.

If Parliament did not end the inequality by 1 December 2006, then words would automatically be "read in" to the Marriage Act to allow same-sex marriages.

Justice Kate O'Regan dissented, arguing that these words should be read in immediately.

Fourie and Bonthuys requested leave to appeal to the Constitutional Court, but this was denied and the High Court instead granted leave to appeal to the Supreme Court of Appeal (SCA).

They applied to the Constitutional Court for direct access, but this was denied on 31 July 2003; the court stated that the case raised complex issues of common and statutory law on which the SCA's views should first be heard.

It also included provisions to recognise domestic partnerships between unmarried partners, both same-sex and opposite-sex.

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