Page:Fourie v Minister of Home Affairs (SCA).djvu/53

Rh after Christianity became the official religion of the Roman Empire in 313 AD. In fact no prescribed form was required. All that was necessary was the reciprocally expressed consent of the parties, even cohabitation was not required. Ulpian expressed the rule as follows (D 35.1.15; D 50.17.30): ‘Nuptias non concubitus, sed consensus facit.’ (Consent not cohabitation makes a marriage.)

Even when marriage began to be controlled by the Church after the disintegration of the Roman Empire in the West, what Bryce calls ‘the fundamental conception of marriage as a tie formed solely by consent, and needing the intervention neither of State nor of Church’ remained the legal position until the middle of the sixteenth century. The Church's control over marriage was manifested in the fact that, from the tenth century, the Church's tribunals had exclusive jurisdiction in regard to questions relating to marriage. As a result there was a uniform law of marriage applied in Western Europe. Marriage, which the Church regarded as a sacrament, was indissoluble, except by decree of the Pope. The Church encouraged the parties to declare their consent before a priest and to receive a blessing; what was referred to as the benedictio ecclesiae (the blessing of the church). In some areas