Page:Fourie v Minister of Home Affairs (SCA).djvu/61

Rh the couple and affording them the opportunity to take their vows at a religious service; and secondly as State marriage officers, bringing into existence a secular legal bond recognised by the State.

But as s 31 of the Marriage Act makes clear, clerics who are marriage officers are not obliged to marry couples if to do so would be against the tenets of their religion. Thus, to take an obvious example, a Roman Catholic priest who is a marriage officer is not obliged to marry a couple one of whom is divorced and whose former spouse is still alive. The Marriage Act contains a provision (s 28) which renders it lawful for a person to marry certain relatives of his of her deceased or divorced spouse. This provision repeals the common law rules which dealt with prohibited degrees of relationship in so far as collaterals by affinity are concerned. These rules were based on the canon law and, to the extent that they are still upheld by certain denominations, clerics belonging to such denominations would be unwilling to solemnise marriages between such persons. Section 31 makes it clear that they are free to refuse to do so. These examples also help to make clear the distinction between the secular institution of marriage which the law regulates and the religious institution of marriage which is recognised in the Act.