take practical effect. Religious orders whose use of such formulae are approved, will at their option be able to perform gay and lesbian marriages. But, he concluded, gay and lesbian couples seeking to have a purely secular marriage would have to await the outcome of proceedings which were launched in the Johannesburg High Court in July 2004, designed to secure comprehensive relief challenging the provisions of the Marriage Act and other statutes.
[22]Cameron JA accordingly limited his order to declaring that in terms of sections 8(3), 39(2) and 173 of the Constitution, the common law concept of marriage is developed to embrace same-sex partners as follows: “Marriage is the union between two persons to the exclusion of all others for life.”
[23]In his minority judgment, Farlam JA dealt broadly with the history of the institution of marriage in our law. He emphasised that during the classical Roman law period marriage was a purely private institution which did not involve the state. No religious or ecclesiastical rite was essential, even after Christianity became the official religion of the Roman Empire in 313 AD. All that was required for the existence of a marriage was reciprocally expressed consent of parties. After the disintegration of the Roman Empire in the West, when the Church began to control marriage, parties were encouraged to declare their consent before a priest and to receive a blessing. Such marriages were regarded as “regular” marriages. There were also so-called “irregular” marriages which were based on the consent of the parties alone. Parties to “irregular”
