Introduction

In 1866, Lord Penzance in the English case of Hyde v Hyde and Woodmansee defined marriage as follows: I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. 1 This, and similar definitions used in other jurisdictions, dominate the legal and societal perception of marriage and continue to exclude same-sex relationships from the very meaning of family. 2 In African societies, traditional same-sex marriages were historically founded on partners adopting feminine or masculine social roles such as female husbands or boy-wives, and in some instances same-sex sexual practices took place. 3 However, based on the concept of marriage as it was defined in Christendom, for any union to be recognised it must be characterised as monogamous and heterosexual. It was through colonial legislation and the adoption of Christian marriage rights that heterosexual monogamy gained a hegemonic position in Africa. 4