Page:Fourie v Minister of Home Affairs (SCA).djvu/56

Rh of the Reformed religion or, ‘who, being estranged from the orthodox church, hated ecclesiastical benediction’.

Marriage law was secularised at the advent of the Reformation as the Protestant reformers did not regard marriage as a sacrament. Brissaud refers to what he calls ‘this remarkable evolution’ by which marriage was completely secularized. The point of departure for this, he says, ‘was in a theological, legal theory of which Saint Thomas Aquinas was perhaps the first to give the formula. According to that writer, marriage could be regarded at one and the same time: 1st. As a contract of natural law (a borrowing from the Roman writings, which understood by this the law which is given to man and to animals). 2d. The civil contract, that is to say, one governed by the Roman law as it was organized, so long as the Church did not have the monopoly concerning questions relating to marriage. 3d. A sacrament, of which the contract was the element and which could not exist without the latter. The civil marriage and the religious marriage are separated in this analysis, whereas in former times they were not distinguished. These speculations, which had no very great bearing so long as they remained shut up within the Schools, were