1. Definition of Marriage

Definition: Marriage is the legally recognised life long voluntary union between one man and one woman to the exclusion of all other persons.
•    This definition relates only to civil marriages since Muslim and customary marriages permit husbands to take more than one wife.
•    Some also argued that the prohibition on same-sex marriages was unconstitutional and that, the reference to "one man and one woman" would have had to be amended.
•    The civil union Act came into operation on 30 November 2006 and it applies to same sex and heterosexual couples.

2. Requirements for a valid marriage
Four requirements for a valid marriage.

1. Capacity to act
2. Consensus
3. Marriage must be lawful
4. Formalities must be complied with

i) Capacity to Act

• Some persons are totally incapable of marrying because they have no capacity to act. (e.g. infantes and mentally ill persons).
• Certain people may marry, but only with the consent of certain other persons.
• The most important example is minor children.
• A girl under 12 and a boy under 14 are absolutely incompetent to marry.

a) Declared Prodigals

• A prodigal is a person with normal mental ability but who is not capable of managing his/her own affairs because he squanders his assets in an irresponsible and reckless way.
• A measure of uncertainty exists as to whether the marriage of a declared prodigal is completely invalid.
• Some cases say that that a declared prodigal cannot marry without obtaining the consent of his curator, and if he does, the marriage must be out of community of property.
• Modern South African writers adopt the view that the prodigal may marry without the curator's consent, but it is unclear which matrimonial property system operates in such a marriage.

b) Insane Persons
An insane person is a person with a mental disorder or disability who cannot understand the nature and consequences of his acts, due to his disorder.

i) If a person is de facto insane, at the time of contracting a marriage, the marriage will be void.

ii) Certifying a person insane does not necessarily affect his capacity.

Thus a marriage contracted during a lucid interval is perfectly valid.

c) Persons under curatorship because they are incapable of managing their own affairs

• Such persons are not insane, but simply incapable of looking after their own affairs due to disability or chronic illness.
• They are competent to conclude a valid marriage without the consent of their curator.

ii) Consensus

• The parties must be in agreement that they want to marry each other.
• Sometimes no genuine consensus exists, or consensus is defective.
• The factors having an effect on consensus are mistake, misrepresentation, duress and undue influence.

a) Mistake

    Only a material mistake excludes consensus.

Error in personam (concerning the I.D. of the other party) and error in negotio (concerning the nature of the act) are the only forms of material mistake in respect of marriage

b) Misrepresentation

 

bi) What is a misrepresentation?
One party misleads the other prior to marriage by making untruthful statements or giving false impression to other and thereby persuades the other to enter the marriage.

    Only a serious misrepresentation affects the validity of a marriage.

bii) Example of a serious misrepresentation. Impotence / sterility.

biii) Effect of a material misrepresentation on the validity of the marriage: Marriage can be annulled / set aside.


c) Duress

What is duress?
Force, undue pressure.

        Here one of the parties has been forced to consent to the marriage.
        The marriage will be voidable as a result of such force or undue pressure.

iii) The Marriage must be lawful
An unlawful marriage is void.

Examples of people who cannot marry.

1. Persons already married.
2. Adoptive parent and adopted child.
3. Prohibited degrees of relationship.
4. Guardian and ward.
5. Prohibition on mixed marriage.

1. Persons already married

• A person who is already married, can't enter into a further civil marriage while the former marriage still exists.
• The second civil "marriage" will be void.
• The second "marriage" can however be a putative marriage, but the marriage will still be void.

When will a marriage be a putative marriage?
If either or both of them believe honestly that the marriage was valid e.g. one party believed his divorce had already been finalised.

2. Adoptive parent and adoptive child

• A child may not marry the person who adopted him/her.
• For the rest of the family, however, adoption does not render a marriage invalid.
• Thus, 2 separately adopted children may marry each other.

3. Guardian and Ward

• A guardian and his ward (i.e. a minor under his guardianship) may marry each other only if the High Court has given consent.

4. Persons within the prohibited degrees of relationship

• Certain people may not marry because they are too closely related.
• People can be too closely related by blood (consanguinity) or by marriage (affinity).
• The relationship can be in the direct line or in the collateral line.

a) Persons who are blood relatives in the direct line are ascendants and descendants of each other.
b) Persons who are blood relatives in the collateral line are not ascendants or descendants but have one or more common ancestor.
c) Affinity in the direct line exists between a spouse and all the blood relatives in the direct line of the other spouse.
d) Affinity in the collateral line exists between a spouse and the blood relatives in the collateral line of the other spouse.

iv) The Marriage must comply with certain formalities

• Certain formalities must be observed during the wedding ceremony.
• E.g. both parties must be personally present (marriage by proxy is not permissible).
• Section 29(2) of the Marriage Act states that a marriage shall be solemnised in a church or other building which is used for religious services, or in a public office or private dwelling house with open doors and in the presence of the parties themselves, and at least two competent witnesses.
• Non-compliance with this requirement should render the marriage void.
• This is, however, not the position in the Durban and Coast Division.

EX PARTE DOW

Facts: The husband / applicant applied for an order declaring the marriage null and void, since it was solemnised in a garden of a private dwelling house and not in the house. This was the only defect with the marriage. The wife supported the approach.

Held: The object of S29(2) is to avoid clandestine marriages. Judge could find no reason or need for the ceremony to take place indoors. Marriage is such an important relationship and the consequences of nullifying it so far reaching, that he did not consider it the intention of the legislature that the marriage should be void simply because the word "in" had not been complied with therefore the application was dismissed.

• The marriage officer who solemnises the marriage, the parties thereto and two competent witnesses must sign the marriage register immediately after the marriage ceremony. Should this not be done, the marriage is not invalid.

If you would like to get Ronald Bobroff & Partners Inc to assistance you with the Legal Requirements for the Conclusion of a Valid Marriage  contact us or call us on 011 880-6781 or on our 24hour toll free number 0860 100 184.