[27]The Marriage Act contains no definition of marriage. It was enacted on the assumption—unquestioned at the time—that the common law definition of marriage applied only to opposite-sex marriages. That definition underlies the statute. This Court has now developed it to encompass same-sex marriages. The impediment the statute presents to the broader relief the appellants seek is only partial. This lies in the fact that s 30(1) prescribes a default—but not exclusive—marriage formula. That formula must be used by (a) marriage officers who are not ministers of religion or persons holding a ‘responsible position’ in a religious denomination or organisation; and (b) marriage officers who are ministers of religion or who do hold such a position, but whose marriage formulae have not received ministerial approval.[1] The statute requires that such marriage officers ‘shall put’ the default formula to the couple, and it requires each to answer the question whether they accept the other ‘as your lawful wife (or
- ↑ Marriage Act 25 of 1961, s 30(1): ‘In solemnizing any marriage any marriage officer designated under section 3 may follow the marriage formula usually observed by his religious denomination or organisation if such marriage formula has been approved by the Minister [of Home Affairs], 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)?”,
and thereupon the parties shall each give each other the right hand and the marriage officer concerned shall declare the marriage solemnized in the following words:
“I declare that A.B. and C.D. here present have been lawfully married.”.’
