Consequences of VOID marriage:

• Old position: Children are "extra-marital".
• Children's Act: No reference to "extra-marital" OR "illegitimate" Children; It now refers to - "a child born from UNMARRIED PARENTS".

Consequences of a VOIDABLE marriage:

• Old position: the annulment could take place only after the court enquired into and considered the safeguarding of the interests of the minor/dependant children born from that marriage.
• Children's Act: Repealed the Children's Status Act: A child conceived or born from a voidable marriage which is annulled, treated like a child whose parents' valid marriage is terminated by divorce.

Consequences of a Putative Marriage:

• Common law position: Children legitimate
• Position remains unchanged under "The Children's Act"
• Children regarded as "Children born from married parents"
• Both parties will have joint parental responsibilities and rights.

1. The distinction between void and voidable marriages

• A marriage is voidable on the strength of circumstances which were present before or at the time of the wedding (and it may be ANNULLED).
• A DIVORCE is granted on the strength of circumstances that developed during the marriage.
• A void (never existed) marriage does not have any legal consequences. There are some statutory exceptions:

1. S6 of Marriage Act:   marriage solemnised by a person who is not a marriage officer is void, but it can be ratified by the Minister of Home Affairs, which will then make it. Then it will be valid.
2. S26 of Marriage Act:  boy under 18 or girl under 15 can't marry without consent of the Minister of Home Affairs. Marriage contracted without his consent is void but the Minister may ratify the marriage, which will then be valid.

• The effect of a decree of annulment of a voidable marriage is that all the consequences of the marriage are EXTINGUISED as from date of marriage (retroactive).

i.e. parties become unmarried
      children remain legitimate

• It is important to remember that annulment of a voidable marriage is not the same as divorce.

2. Grounds for nullity of a marriage
There are two grounds:

1. Non-compliance with formal requirements.
2. Non-compliance with material requirements.

a) Non compliance with formal requirements

1. The marriage is solemnised by someone who is not a competent marriage officer.
2. Girl under 15, boy under 18 did not get consent of Minister of Home Affairs.
3. No witnesses were present at the marriage.

b) Non compliance with material requirements

1. One party is already married to someone else.
2. They are related within prohibited degrees.
3. One of them has not reached puberty.
4. One was insane at the time of the marriage.

3. Grounds for voidability of a marriage
There are five grounds:

1. Minority
2. Stuprum
3. Material mistake
4. Impotence
5. Sterility

a) Minority

• A marriage entered into without the necessary consent is not void, but voidable, at the request of the parent or the minor himself.
• If the parent has not consented, the court can dissolve the marriage if application is made by:

i) The parent / guardian within six weeks from the date upon which he became aware of the marriage and before the minor turns 18.
ii) The minor himself before majority (18) or within three months thereafter.

b) Stuprum (sexual intercourse before marriage)

• Stuprum = Sexual intercourse with a third party before marriage.
• This does not normally affect the validity of the marriage.
• It is only where the wife was, at the time of the marriage, pregnant with the child of a man other than her husband, and he was unaware of this, that he can apply for the annulment of the marriage.
• The fact that the husband himself had sexual intercourse with his wife before the marriage, does not affect his right to have the marriage annulled.
• If the husband accepts his wife's pregnancy, and condones her actions, he cannot apply for annulment.

c) Material Mistake


d) Impotence

• Impotence is the inability to have sexual intercourse.
• The marriage is voidable only if the one spouse proves that the other was impotent BEFORE contracting the marriage and remains impotent and he was unaware of the impotence at the time of the marriage.
• The impotent spouse can also apply for annulment provided he was unaware of his impotence at the time of contracting the marriage.
• The application won't succeed if the plaintiff:

1. Was aware of the impotence.
2. Condoned it.
3. If the impotence was temporary or had a probable cure.

e) Sterility

• The difference between sterility and impotence:

- Impotence is the inability to have intercourse.
- With sterility the party can intercourse but is infertile.

• There are 2 conflicting decisions regarding sterility. What was decided in each case?

1. Van Niekerk v Van Niekerk: The mere fact of sterility renders the marriage voidable.
2. Venter v Venter: Only fraudulent concealment of sterility renders the marriage voidable.

4. The Putative Marriage

• What is a putative marriage?

Where one or both of the parties are unaware at the time of contracting the marriage of the defect, which renders their marriage void and believe in good faith they were lawfully married.

• Such a marriage is void.
• It is uncertain whether the marriage had to comply with all the other formalities to be called a putative marriage.

1. Bam v Bhabha: The matter was discussed but not decided.
2. Moola v Aulsebrook: Due solemnisation is not a requirement for recognition of a putative marriage.
3. Solomons v Abrams: Due solemnisation is required for recognition of the putative marriage.

MOOLA v AULSEBROOK

Area of law: Void marriages: putative marriages

Facts: N and H had gone through a marriage ceremony in accordance with Islamic Law by a Priest who was not a marriage officer. Neither N nor H knew they had not been married by a marriage officer.

Held: The marriage was putative (not void) even though the formalities had not been complied with. Therefore the children were legitimate.

SOLOMONS v ABRAMS

Facts: H and N had married under Islamic Law. They both believed the marriage was lawful in terms of Islamic Law. They made no attempt to find out the requirements for validity under South African law. They wanted their marriage declared lawful.

Held: Because the marriage officer was not lawful, the formalities had not been complied with. This was not a putative marriage.

• A putative marriage is an exception to void marriages because it has some of the legal consequences of a valid marriage.

a) children born of a putative marriage are legitimate (the court order is merely declaratory)
b) as regards the patrimony (assets) of the parties

• If both were bona fide and community of profit and loss was excluded, they are married in community of property.
• If only one party was bona fide, the marriage will be in community of property, only if it is to the advantage of the innocent party.
• As soon as both parties become aware of the defect, the marriage automatically ceases to be putative.
• The court cannot declare a putative marriage valid, because the marriage is void.

If you would like to get Ronald Bobroff & Partners Inc to assistance you with any Void and Voidable Marriages issues  contact us or call us on 011 880-6781 or on our 24hour toll free number 0860 100 184.