I turn finally to the application of the principles or guidelines, referred to above, to the facts and legislative unconstitutionality in the present case. The striking down of section 25(5) will have the unfortunate result of depriving spouses, as presently defined, from the benefits conferred by the section; it will indeed be “equality with a vengeance” and create “equal graveyards”. This consequence cannot properly be addressed by the device of suspending such order for a fixed period of time. The above unfortunate consequences would ensue if Parliament did nothing and the suspension lapsed with the effluxion of time.
More important perhaps, is the fact that, normatively, such an order would convey an impression that achieving equality by striking down the benefits which spouses presently enjoy would be a constitutionally permissible result. It is unnecessary and undesirable to decide, in the present case, whether the failure to afford spouses the benefits that they currently enjoy by virtue of the provisions of section 25(5) would be constitutionally defensible. It would be equally undesirable to suggest the contrary by making a striking down order.
- See Schachter above n 93 at 15 g.