KOS v Minister of Home Affairs and its relevance to the law of marriage in South Africa

This article reviews the applications of three transgender persons to have their new identificatory details recorded in the relevant population registry, and to have suitably adjusted identity documents issued in consequence. However, the law of marriage seemed to stand in their way. Related issues have been raised in foreign courts, which are discussed in the second part of this article. It is argued that, although the decision in KOS v Minister of Home Affairs1 was undoubtedly correct on human rights grounds, the implications of the decision affects the interplay between the law of marriage and civil unions where a sex reassignment takes place during the subsistence of an existing marriage.