Page:Fourie v Minister of Home Affairs (SCA).djvu/21

Rh 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. 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