Page:Fourie v Minister of Home Affairs (SCA).djvu/96

Rh a reference to a ‘spouse’ married in terms of that Act. This is, however, for Parliament to decide and as I am of the view, for the reasons that I shall give later in this judgment, that the order to be given in this case should be suspended for two years to allow Parliament to consider the matter, Parliament will have the full opportunity to consider the advisability of enacting such a provision when it considers other aspects of the matter.

ARE THE APPELLANTS DEBARRED FROM SEEKING RELIEF BECAUSE THEY DID NOT CHALLENGE THE CONSTITUTIONAL VALIDITY OF s 30(1) OF THE MARRIAGE ACT?

I proceed to consider whether, as the court a quo held, this Court is precluded from granting relief to the appellants because they did not challenge the constitutional validity of s 30(1) of the Marriage Act, which sets out the marriage formula. This formula, which has been quoted above, is clearly based on the declaration prescribed by the Order in Council of 7 September 1838. Section 7, as amended by an Order in Council of 3 April 1840, provided that in the case of marriages other than those using the form and ceremony or ritual of the Anglican or Dutch Reformed