1. Introduction

• "Natural Fathers of Children Born out of Wedlock Act 86/1997" - repealed by the CHILDREN'S ACT.
• The Children's Act provide certain fathers with parental responsibilities and rights. The term "guardian" replaced by "holder of parental responsibilities and rights. All parties that are co-holders of parental rights and responsibilities must consent before minor child may enter into marriage.
• Where the parents or other people are co-holders of parental responsibilities and rights under the Children's Act all co-holders consent is required for a minor child to enter into a marriage (S 18(3)(c)).
• If only one parent is the holder, then only that parents consent is required (S 18(5)).

2. Consent necessary for the marriage of a minor
s12 of the Marriage Act:
No marriage officer may solemnize the marriage unless each of the parties produces their identity documents or furnishers an affidavit which reflects the age of the parties.

s24(1) of the Marriage Act :
No marriage officer may solemnize a marriage between parties of whom one or both are minors unless the consent to the party which is legally required for contracting the marriage has been granted and furnished to the marriage officer in writing.

s27 of the Marriage Act:
When the marriage officer reasonably suspects that the age on the prospective spouse is such that he would be debarred from contracting a valid marriage without having obtained consent, he may refuse to solemnise the marriage.

(i) The parents of the minor

• If both are alive both must consent, to the marriage of their legitimate child, unless the court orders otherwise or sole guardianship has been granted to one of them.
• If the parents are divorced then both parents must give consent to the marriage.
• If one of the parents are deceased then the surviving parent should give consent to the marriage.
• If the child is born out of wedlock, the mother's consent is needed.
• If sole guardianship has been granted to a father, only his consent is necessary.

(ii) The guardian

• If both parents are deceased, the orphan must obtain the guardian's permission.
• The guardian cannot consent to a marriage between himself and the minor. In such case, the consent of the court must be obtained.

(iii) The Minister of Home Affairs

• Boy between 14 and 18 and a girl between 12 and 15 must obtain permission from his/her parents and written consent from the Minister of Home Affairs.
• The Minister will only grant consent if he considers the marriage desirable.
• The Minister's consent is only unnecessary if the High Court has given consent.
• If the marriage is entered into without ministerial consent it is null and void, however the Minister may ratify the marriage if:

• He considers the marriage desirable and in the interests of the parties
• The marriage was in all other respects solemnized in accordance with the provisions of the Marriage Act
• There is no other lawful impediment to the marriage

(iv) Commissioner of child welfare

• Where one or both parents are absent, or insane, or in any other way not competent to consent to the marriage, or the minor does not have a guardian, the Commissioner of Child Welfare can consent.
• The Commissioner cannot consent if either the parents or guardian refuses to grant consent.
• The Commissioner must also determine if it is in the minor's interest to enter into an antenuptial contract.
• If so, he must ensure that the contract is entered into before consenting to the marriage and must assist the minor in execution of the contract.
• If the Commissioner refuses to consent to the marriage, the minor may approach the high court for consent.

(v) High Court

• If one or both parents, the guardian or the Commissioner of Child Welfare refuses to grant consent, the minor may approach the High Court for permission to marry. (For this purpose he is regarded as having capacity to litigate).
• The judge will only grant the order if he is satisfied the refusal was without adequate reason and contrary to the interests of the minor.
• The court must make due allowance for the fact that the parents are in a better position than the court to make decisions of such a personal nature.
• However, even if the minor's application is unopposed, the court will not inevitably override the parents refusal to grant consent.

3. Instances in which the minor requires no consent to marry
Where the minor has already been married (and the marriage was dissolved by death/divorce).

It is no longer possible to approach Court to be declared a major.

4. Effects of the absence of the necessary consent (where 1 or both are minors without consent)
(i) Effect on validity of the marriage:

• Section 24A of the Marriage Act: The marriage is not merely invalid because the parents have not consented thereto.
• A court can however dissolve the marriage if application is made by:

    1. Parents of or guardian.
    2. Minor himself.

a) When must the parents or guardian apply?
Before the minor attains majority (18) and within six weeks from the date of finding out about the marriage.

b) When must the minor apply?
Before the minor attains majority or within three months thereafter.

• Thus, the marriage is voidable at the instance of the minor or his guardian.
• If the marriage has not yet been dissolved by this time, it continues to exist until such time as it is dissolved by death or divorce.
• The court may not set the marriage aside unless it is satisfied that the dissolution is in the minor's interest.

(ii) Effect on patrimonial consequences of the marriages:
a) If the marriage is dissolved

• What does section 24(1) of the Matrimonial Property Act provide? The assets are to be divided as the court deems just.
• The court will look at factors like: What each contributed, the wishes of the parties, the interests of the minor, the ages of the parties and whether the major spouse took advantage of the minor spouse's inexperience.

b) If the marriage is not dissolved

• S24(2) of the Matrimonial Property Act makes provision for two options:

1. If the parties have not entered into an antinuptial contract they are married in Community of Property.
2. If the parties have entered into an antinuptial contract in which accrual is not excluded, the antinuptial is valid.

• For which proprietal regime does s24(2) not make provision Where the parties entered into an antinuptial contract excluding accrual.

If you would like to get Ronald Bobroff & Partners Inc to assistance you with any Civil Marriage Of A Minor issues contact us or call us on 011 880-6781 or on our 24hour toll free number 0860 100 184.