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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.

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 was originally expected that the National Assembly would vote on the bill on 20 October in order to allow enough time for the National Council of Provinces to debate and vote on it ahead of the 1 December deadline.

The vote was repeatedly delayed as the Portfolio Committee on Home Affairs was still involved in discussions.

On 7 October, the Marriage Alliance organised a march to the Union Buildings in Pretoria to hand to government representatives a memorandum opposing same-sex marriage.

On 9 October, the governing African National Congress voted to support the Civil Union Bill.

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