This page has been validated.
17280/02-CT
4
Judgment
|
|
The “right” in question must be the Applicants' assumption that they are married. Again I refer to prayer 2 of the notice of motion. In Roman Law marriage is the full legal union of man and woman for the purpose of lifelong mutual companionship. I refer for example to Sohm: Institutes and Roman Law 3rd Edition at page 452. Nothing I am aware of has changed since. Indeed the Marriage Act 25 of 1961 mirrors the age old concept of what a marriage is. I refer to the peremptory provisions of section 30(1) of the Act:
“1. In solemnising any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by religions denomination or organisation if such marriage formula has been approved by the Minister, but if such marriage formula has not been approved by the Minister or, in the case of any other marriage officer, the marriage officer concerned shall put the following questions to each of the parties separately, each of whom shall reply thereto in the affirmative: “Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?”
This section which, as I have already pointed out, is peremptory. It contemplates a marriage between a male and a female and no other. Section 11(1) of the same act provides as follows:
