| (7) | Can the appellants be granted the relief they seek in the absence of a prayer for declarations that the Marriage Act and the Identification Act are inconsistent with the Constitution? And | |
| (8) | Can and should any order the Court may make be suspended to enable Parliament to consider the matter? |
History of institution of marriage in our law
[68]Before I proceed to consider these issues it is in my view desirable to say something about the history of the institution of marriage in our law.
[69]It is convenient for our purposes to begin with the marriage law of the Romans during the period of the classical Roman law (the first two and a half centuries of the Christian era).
As Professor Max Kaser says:[1]
‘[T]he Roman marriage (matrimonium) was not a legal relationship at all, but a social fact, the legal effects of which were merely a reflection of that fact. … Marriage was a “realised union for life” … between man and woman, supported by affectio maritalis, the spouses' consciousness of their union being marriage.’
The act which brought the marriage into existence was a purely private one. No State official was involved. The marriage did not have to be registered: indeed no public record of any kind was required. No religious or ecclesiastical rite was essential, even
- ↑ Roman Private Law 3 ed (1980) translated by Professor Rolf Dannenbring, p 284.
