Is Same-Sex Marriage Legally Excluded in Mauritius?- The Mauritian Civil Code, Constitutional equality and the changing African human-rights landscape

By Mokshda Pertaub, Barrister-at-Law

Introduction

The question whether same-sex marriage is legally possible in Mauritius is usually answered quite simply: No. Mauritius does not presently recognise same-sex marriage. But there is a more interesting legal question behind that answer:

Does Mauritian law expressly prohibit marriage between two persons of the same sex, or does the existing legal framework simply not provide for it?

That distinction matters.

A closer examination of the Code Civil Mauricien, the Constitution, the African Charter on Human and Peoples' Rights, the Maputo Protocol and comparative African jurisprudence—particularly South Africa—reveals a question which deserves greater legal consideration.

1) The Code Civil Mauricien

The provisions governing marriage in the Code Civil Mauricien are found in Title V, ss. 144.

The Code regulates matters such as consent, age, prohibited degrees of relationship, existing marriages and the legal consequences of marriage. It also repeatedly uses traditional terminology such as le mari, la femme, l'époux and l'épouse, in many articles, without expressly stating that marriage is between a man and a woman. An example of this can be seen in s 288-4 CCM( contexte- mariage religieux) :

228-4. “ Le mari a l'obligation principale de pourvoir, selon ses ressources, à l'entretien du ménage et d'assurer la subsistance et le logement de son épouse en conformité avec le niveau de vie de la famille.

Il doit des aliments ou une indemnité compensatoire à son épouse, au cas où la rupture du lien conjugal ne serait pas imputable à celle-ci.”

The historical conception of marriage underlying the Code is therefore clearly that of a heterosexual union.

But there is a distinction between historical drafting and an express statutory prohibition.

The Code Civil Mauricien does not appear to contain an express provision stating that marriage may only be contracted between a man and a woman. Nor does it contain the modern formulation found in the French Code civil since 2013:

« Le mariage est contracté par deux personnes de sexe différent ou de même sexe. »

France chose to resolve the issue expressly through legislation. Mauritius has not. This does not mean that same-sex marriage is currently lawful in Mauritius. It means that we should distinguish between:

(i) the absence of an express statutory prohibition, and

(ii) the existence of a positive legal right to marry.

The latter does not automatically follow from the former.

2) The Constitutional dimension

The question becomes more significant when the matrimonial legislation is read alongside the Constitution. The constitutional landscape changed considerably with the Supreme Court's decision in Ah Seek v The State of Mauritius 2023 SCJ 399. The Court declared the criminalisation of consensual same-sex intimacy between adult men unconstitutional. The decision was significant for its treatment of discrimination and sexual orientation. But Ah Seek did not establish a constitutional right to same-sex marriage.

Decriminalisation and marriage equality are distinct legal questions.

Nevertheless, the decision raises an important question for the future:

If sexual orientation is protected against discriminatory State action, can the State nevertheless deny a category of adults access to a major civil legal institution solely because of their sexual orientation?

That question remains open in Mauritius.

3) The African Charter on Human and Peoples' Rights

The analysis should not stop at domestic law. Mauritius forms part of the African human-rights system through the African Charter on Human and Peoples' Rights. Three provisions are particularly relevant.

(i) Article 2 guarantees enjoyment of Charter rights without distinction of any kind, expressly including sex.

(ii) Article 3 provides for equality before the law and equal protection of the law.

(iii) Article 18 recognises the family as the natural unit and basis of society and requires State protection of the family.

The African Charter therefore contains both family protection and equality and non-discrimination. It does not, however, expressly establish a right to same-sex marriage.

That distinction is important.

4) Resolution 275 and sexual orientation

The African Commission on Human and Peoples' Rights subsequently adopted Resolution 275, concerning protection against violence and other human-rights violations based on actual or imputed sexual orientation or gender identity.

The Resolution recalls Articles 2 and 3 of the African Charter and calls upon States to protect individuals against violence and human-rights violations based on sexual orientation or gender identity.

Its significance is considerable: sexual orientation is not invisible within the African human-rights system.

But Resolution 275 should not be overstated. It does not require African States to legalise same-sex marriage. Its importance lies in reinforcing the regional principle that people should not suffer violence, persecution or human-rights violations because of their sexual orientation.

5) What does the Maputo Protocol tell us?

The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, commonly known as the Maputo Protocol, requires an equally careful reading.

Article 6 provides that: “States Parties shall ensure that women and men enjoy equal rights and are regarded as equal partners in marriage.”

It also requires free and full consent to marriage, registration of marriages and equality in matrimonial and family rights.

The Protocol therefore establishes a powerful African principle: Marriage must be based upon equality and free consent.

But it would be legally inaccurate to say that the Maputo Protocol creates a right to same-sex marriage. Article 6 is framed around equality between women and men and uses the terminology of husband and wife.

Its relevance to this debate is therefore broader: it places equality, autonomy, dignity and consent at the heart of the African legal conception of marriage.

6) South Africa: an African constitutional precedent

South Africa provides perhaps the most instructive comparative example.

The South African Constitution expressly prohibits unfair discrimination on grounds including sexual orientation. In Minister of Home Affairs v Fourie, the Constitutional Court considered whether the exclusion of same-sex couples from marriage was compatible with constitutional equality and dignity. The Court found the exclusion unconstitutional and required Parliament to remedy the defect.

Parliament subsequently enacted the Civil Union Act 17 of 2006, providing for civil unions by way of either marriage or civil partnership.

South Africa therefore demonstrates that marriage equality can be treated not merely as a question of social policy, but as a constitutional question involving equality, dignity and equal access to the legal consequences of marriage.

The South African model cannot simply be transplanted into Mauritius. Our constitutional wording and legal history are different. But it provides an important African comparative precedent.

7) Mauritius at a crossroads

It is at this point that the wider African context becomes important.

Africa is experiencing two competing normative currents.

(i) On one side is an expanding human-rights discourse centred on:

• equality;
• dignity;
• non-discrimination;
• protection against violence; and
• recognition of sexual orientation within the human-rights framework.

On the other is an increasingly organised movement centred on:

• traditional family structures;
• religious and cultural values;
• parental authority;
• national sovereignty;
• heterosexual marriage; and
• opposition to what is perceived as externally driven LGBTQ+ rights agendas.

This debate is increasingly visible across Africa and internationally.

8) The emerging “family values” movement

A particularly significant development is the proposed African Charter on the Protection of the Family, Sovereignty, and Religious and Cultural Values.( not yet a treaty)

Its legal status must be stated carefully.

It is presently a draft/proposed instrument, not an adopted African Union treaty or protocol. Current legal analysis describes it as a draft Charter emerging from the family-values and sovereignty movement.

Nevertheless, its political significance should not be underestimated.

The proposed Charter reflects an increasingly organised effort to place traditional family structures, religious values, cultural sovereignty and parental authority at the centre of African policy-making.

Critics, however, argue that some aspects of this movement risk using “family values” and “cultural sovereignty” to undermine existing commitments to gender equality, sexual and reproductive rights and LGBTQ+ rights.

This is therefore becoming a genuine normative contest within Africa itself.

9) Tradition, religion and human rights

The debate must nevertheless be approached carefully. It would be wrong to equate everyone who supports traditional marriage or religious values with being “anti-rights”. Freedom of religion, freedom of conscience and the preservation of culture are themselves fundamental rights.

The more difficult question arises when religious or cultural preferences are translated into State law in a way that removes civil rights from another category of citizens.

The distinction between religious marriage and civil marriage is particularly important.

A religious institution may determine whom it will marry according to its doctrine. That is different from asking whether the State should deny two consenting adults access to a civil legal status.

The question of civil marriage is therefore fundamentally a question of law and constitutional equality, not theology.

10) “African values” versus “Western values”?

The debate is sometimes presented as a conflict between African values and Western human rights.

That is too simplistic.

1. The African Charter is itself an African human-rights instrument.
2. Resolution 275 comes from the African Commission.
3. The Maputo Protocol is an African Union human-rights treaty.
4. South Africa's marriage-equality jurisprudence is African constitutional jurisprudence.
5. The real question is therefore not whether Africa must choose between “African values” and “Western values”.

It is:

How should African constitutional democracies reconcile family, culture, religion and sovereignty with the human-rights commitments that African States themselves have undertaken?

That is a much more difficult—and more productive—question.

11) Where does this leave Mauritius?

Mauritius now sits at an interesting legal crossroads.

We have:

a Code Civil Mauricien historically structured around husband and wife;

a Civil Status framework under which same-sex marriages are not presently registered;

a Constitution containing equality and non-discrimination guarantees;

Ah Seek, which significantly changed the constitutional treatment of sexual orientation;

the African Charter, with its guarantees of equality and non-discrimination;

Resolution 275, addressing human-rights violations based on sexual orientation and gender identity;

the Maputo Protocol, affirming equality and free consent within marriage;

the example of South Africa, where marriage equality emerged through constitutional litigation and subsequent legislation;

and, simultaneously,

a growing African family-values and traditionalist movement seeking to reinforce heterosexual marriage and traditional conceptions of family, religion and culture.

Mauritius therefore finds itself between competing legal and political currents.

12) Could a constitutional challenge in our courts succeed?

It would be premature to say.

A Mauritian court would have to consider, among other things:

• what the Code Civil actually requires for a valid marriage;
• whether the legislation expressly excludes same-sex couples;
• whether such exclusion constitutes unconstitutional discrimination;
• how far the reasoning in Ah Seek extends beyond criminal law;
• the relevance of Mauritius's obligations under the African Charter;
• the interpretative significance of Resolution 275;
• the limits and relevance of the Maputo Protocol;
• comparative jurisprudence such as Fourie; and
• whether the matter should ultimately be determined by the judiciary or Parliament.

These are not simple questions. But neither can they necessarily be dismissed by saying that the Code was historically drafted around heterosexual marriage.

13) Conclusion: What does equality before the law mean?

The debate about same-sex marriage is ultimately about more than marriage. It sits at the intersection of constitutional law, equality, religion, culture, family, sovereignty and human rights.

Mauritius has already taken an important constitutional step through Ah Seek, recognising that consensual same-sex intimacy between adults cannot be criminalised merely because of sexual orientation.The next question may concern something broader:

What does equal citizenship mean when access to a major legal institution is concerned?

At the same time, Mauritius must recognise that Africa is not moving in one direction. There is an expanding human-rights jurisprudence addressing discrimination based on sexual orientation. There is also an increasingly organised traditionalist and family-values movement asserting religion, culture, sovereignty and heterosexual marriage. Neither should be caricatured. The protection of family, religion and culture are legitimate concerns.

So too are equality, dignity and non-discrimination.

The challenge for African constitutionalism is therefore not to choose simplistically between family and human rights, but to determine how those values can coexist without one becoming a justification for denying the rights of another.

For Mauritius, the legal question remains open.

The Code Civil Mauricien reflects the assumptions of the society in which it was drafted. The Constitution speaks to the society we are today—and to the rights that the State must protect.

Whether those constitutional principles ultimately require Mauritius to reconsider access to civil marriage is a question that deserves serious legal scholarship, parliamentary debate and, if necessary, judicial determination.

The conversation should therefore not begin with whose values should prevail, but with a more fundamental question:

What does equality before the law truly mean in Mauritius?

This dated archive preserves the author’s original commentary. It is general information, not legal advice, and may not reflect current law.