Page:Fourie v Minister of Home Affairs (SCA).djvu/60

Rh 60 first published in 1665. In book 2, chapter 27, paragraph 20 we find the following: ‘It is possible for someone indeed to call one marriage a political marriage and the other a church marriage inasmuch as one is contracted in the face of the church and the other before a court. But if this distinction were to be approved it proceeds from the incidentals of the marriage and is of no force if one has regard to the bond of the marriage itself, honourableness, the legitimate status of the children who are born therefrom and all the rights which the spouses obtain. Because the same legal position applies in both cases, the same dignity, the same honourableness, the same bond. Indeed a marriage contracted in church can be called a political marriage in so far as it is solemnized in the church by the authority of a magistrate through a delegated person, namely a minister of God.’ This analysis is clearly correct and as applicable today as it was in 1665 when it was first published.

I have dealt in some detail with the history of the law of marriage because it throws light on a point of cardinal importance in the present case, namely that the law is only concerned with marriage as a secular institution. It is true that it is seen by many to have a religious dimension also but that is something with which the law is not concerned. Even though clerics are appointed marriage officers, when they solemnise marriages they do so in a twofold capacity: first as clerics, giving the benedictio ecclesiae to