Page:Fourie v Minister of Home Affairs (SCA).djvu/52

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HISTORY OF INSTITUTION OF MARRIAGE IN OUR LAW

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.

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: ‘[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