third century, and the definition given in Justinian's Institutes. Modestinus's definition reads as follows (D 23.2.1):
‘nuptiae sunt coniunctio maris et feminae et consortium omnis vitae divini et humani iuris communicatio’ (marriage is a joining of man and woman, a partnership in the whole of life, a sharing of rights both sacred and secular’.[1]
Justinian's definition reads as follows (Inst. 1.9.1):
‘Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam vitae consuetudinem continens’ (‘wedlock or marriage is a union of male and female involving an undivided habit of life’).[2]
These definitions have been quoted over and over again down the centuries. Indeed O'Regan J, in Dawood, Shalabi and Thomas v Minister of Home Affairs[3] used the expression consortium omnis vitae in referring to the ‘physical, moral and spiritual community of life’ created by marriage.
A useful expanded paraphrase of the concept was given by the great Scots jurist Viscount Stair in his Institutions, published in 1681. He said that the consent to marriage is:[4]
‘the consent whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution
- ↑ Translation based on that given by Bryce op cit p 798.
- ↑ RW Lee's translation The Elements of Roman Law 4 ed (1956) p 80.
- ↑ 2000 (3) SA 936 (CC) in fn 44 to para 33. See also per Ackermann J in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, 2000 (2) SA 1 (CC) at para 46.
- ↑ Book 1, tit 4, para 6.
