Page:Fourie v Minister of Home Affairs (SCA).djvu/63

Rh third century, and the definition given in Justinian's Institutes. Modestinus's definition reads as follows (D 23.2.1): ‘nuptiae sunt coniunctio maris et feminae et consortium omnis vitae divini et humani iuris communicatio’ (marriage is a joining of man and woman, a partnership in the whole of life, a sharing of rights both sacred and secular’. Justinian's definition reads as follows (Inst. 1.9.1): ‘Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam vitae consuetudinem continens’ (‘wedlock or marriage is a union of male and female involving an undivided habit of life’). These definitions have been quoted over and over again down the centuries. Indeed O'Regan J, in Dawood, Shalabi and Thomas v Minister of Home Affairs used the expression consortium omnis vitae in referring to the ‘physical, moral and spiritual community of life’ created by marriage.

A useful expanded paraphrase of the concept was given by the great Scots jurist Viscount Stair in his Institutions, published in 1681. He said that the consent to marriage is: ‘the consent whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution