Page:Fourie v Minister of Home Affairs (SCA).djvu/59

Rh Marriage Act 16 of 1860 the resident magistrates were made marriage officers and the Governor was empowered to appoint marriage officers for Jews and Muslims. Similar legislation was passed in the other colonies which eventually made up the Union of South Africa.

The Marriage Act 25 of 1961 consolidated the laws governing the formalities of marriage and the appointment of marriage officers and repealed some 47 Union and pre-Union statutes from the Marriage Order in Council of 7 September 1838 onwards. It is clear from a study of the provisions of the Marriage Act that it builds on the foundations laid by the Council of Trent in 1563 and by the States of Holland in 1580. It is solely concerned with marriage as a secular institution. Although it does not go as far as the French did in 1791 and 1792 and the Dutch legislature thereafter in requiring all marriages to be solemnized by a civil official and not allowing clerics to solemnize them, it clearly constitutes clerics who are marriage officers State officials for the purpose of bringing into being a marriage relationship between the intending spouses which is recognised by the State.

Indeed it is instructive to note that this way of seeing the matter is set forth by Henricus Brouwer (1625–1683), a leading Roman Dutch writer, in his work De Jure Connubiorium, which was