Page:Minister of Home Affairs v Fourie.djvu/17



Rh which put the husband in a superior position and the wife in an inferior one are no longer part of our law.

In respect of the contention that applicants are debarred from seeking relief because they did not challenge the constitutional validity of section 30(1) of the Marriage Act, he held that there is no section in the Marriage Act that expressly approves the common law definition of marriage. Section 30(1), according to Farlam JA, cannot be regarded as placing what may be called a ‘legislative imprimatur’ on that definition. What has happened is that the marriage formula contained in the Act was framed on the assumption that the common law definition of marriage was correct, which it was in 1838 and in 1961. He found that the formula can be changed by a process of innovative and ‘updating’ statutory interpretation by reading “wife (or husband)” in this provision as “spouse”.

Farlam JA therefore supported an order declaring that the intended marriage between the applicants, provided that it complies with the formalities set out in the Marriage Act, would be capable of being recognised as a legally valid marriage. He

Rh