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Washington University Law Review




Wash. U. L. Rev.

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In this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.

Second, South African jurisprudence illuminates the fact that the choice whether to marry can be severely constrained and even illusory. When couples desire marriage and have de jure legal capacity to marry, de facto conditions may well place marriage out of reach. For example, a gay couple in a homophobic small town may remain closeted for their safety and see marriage as an unrealistic option. Marriage may also be an unrealistic choice due to intra-couple power dynamics, such as when a financially dependent woman wishes to marry but her partner, who has financial leverage, opposes marrying. A couple that jointly wishes to marry may also find marriage out of reach if they face pressures to delay marriage or if one partner dies before wedding plans are realized. South African law prompts us to contemplate how law should respond to the fact that the choice to marry is sometimes severely constrained.

Third, the trajectory of South African law sheds light on how the principle of free choice can help shape the criteria that unmarried couples must satisfy to receive legal recognition. As we will explain, South African law regarding recognition criteria requires elaboration and refinement. Yet, it also contains the nascent idea that criteria for recognition should vary by context. For example, the criteria for legally recognizing an unmarried couple for adoption or workplace leave need not — and should not — be the same as criteria for legally recognizing an unmarried couple for intestate succession. We contend that this contextual approach to recognition criteria serves a variety of salutary goals, including the enhancement of autonomy.

The remainder of this Article will proceed in four steps. Part I provides a brief overview of legal developments in South Africa. Afterwards, we delve into the three abovementioned dimensions of choice: Part II examines nonmarriage as a valid choice; Part III addresses marriage as a constrained choice; and Part IV discusses choice as a factor in designing recognition criteria. We will examine how studying South Africa enriches our understandings of these dimensions of choice. To be sure, choice is not the only principle that should inform the law of nonmarriage. Equality, human vulnerability, and administrative feasibility are some of the other considerations that should play a role in shaping family law. This Article, however, focuses on enriching our understandings of choice.

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