Contextual History of the Institution of Marriage

Sir James Rose-Innes, who was the chief justice of South Africa from 1914 to 1927, defined marriage by stating: “With us, marriage is a union of one man with one woman to the exclusion while it lasts, of all others.”

Legal scholars, and former judge Ian Farlam of the Supreme Court of Appeal of South Africa, give a helpful history on the institution of marriage, as well as its secular and ecclesiastical characteristics.

It is said marriage, which the Romans called matrimonium, was originally not considered a legal relationship.

It was only a private and social pact between a man and a woman. 

Marriage was accepted as a union for life between a man and a woman. There was no involvement of the state.

It created what the Romans called consortium omnis vitae – the physical, moral and spiritual community of life which marriage creates.

It is also stated that no religious or ecclesiastical rite was a requirement for marriage, even after Christianity became the recognised religion of the Romans in around 313 AD.

It appears the church only got involved in marriages in the 10th century when its tribunals began having exclusive jurisdiction over aspects of marriages.

At that point, marriage was regarded as a sacrament not capable of dissolution, except by a decree of the pope.

The church’s involvement introduced a public requirement that a marrying couple – man and woman – declare their consent and love before a priest and receive a blessing through what was then known as benedictio ecclesiae (blessing of the church).

THE STATE

State involvement came long after that of the church – somewhere after 1795.

Because of this historical background, during the British occupation of the Cape the first law related to the solemnisation of marriages by the state came about through an order of council on 7 September 1838. 

It made detailed provisions on marriage while maintaining the church’s existing involvement.

This law remained in force until the Marriage Act (25 of 1961) came into force and was also made applicable to South West Africa.
Section 30 of the act, in a manner consistent with the common law definition of “marriage”, requires a marriage officer to execute a specific formula to the marrying couple, a man and a woman, as follows:

“Do you, A.B., declare that as far as you know there is no lawful impediment to your proposed marriage with C.D. here present, and that you call all here present to witness that you take C.D. as your lawful wife (or husband)?”

Thereupon, the parties shall give each other the right hand and the marriage officer shall declare the marriage solemnised in the following words:

“I declare that A.B. and C.D. here present have been lawfully married.”

The common law definition of marriage between men and women remains part of our law by virtue of article 66(1) of the Constitution.

It states that both the customary and common law of Namibia in force at independence shall remain valid to the extent to which such laws do not conflict with the Constitution or acts of parliament.

Of course, the common law definition of marriage – being between a man and a woman – cannot be said to be in conflict with the Constitution when considered together with the provisions of article 14(1), which expressly creates a protectable right for men and women to marry and found a family.

FAMILY ACT

In 1977, the ruling party, Swapo, promulgated the Swapo Family Act which defined marriage as: “Marriage shall be the community of lives of a man and woman regulated by statute.”

This definition was, with a few modifications, replicated in the Constitution under article 14(1), which gives men and women the right to marry and found a family.

The Swapo Family Act was made law in Namibia when it was incorporated in the Recognition of Certain Marriages Act, 18 of 1991
Article 14(3) of the Constitution enjoins the state to protect the family as the natural and fundamental unit of society.

The founding fathers and mothers of Namibia’s Constitution exactly meant a family formed by men and women as envisioned by Swapo before independence, and then known as common law.

Therefore marriage, considered in its historic context as an institution controlled and administered in terms of Christian rites, and secularly through statutory requirements of the state, and having been accepted for centuries to be an institution through which men and women form families, was deliberately proclaimed and protected under the Constitution.

The founding fathers and mothers must be taken to have been well aware of the historical context of marriage when they crafted article 14.
I hope the ongoing public discussion of the recent Supreme Court judgement will proceed in an informed, dignified and responsible manner.
I seriously ask that the debate be carried out without scandalising or impugning the authority and integrity of the courts.

• Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia. He is also the author of five legal publications.