Notes Chapter 4 & 5

MODULE 3: Chapters 4&5

 

 

1.       VOID: 

 

·                 Definition – void civil marriage is a civil marriage that never comes into

existence. Therefore the position is as if a marriage never took place.

·                 Null and void – non-compliance with material requirements of a civil marriage.

·                 Non-compliance of formal requirements – exception ito Marriage Act 25 of 1961 = error, oversight regarding question/declaration/giving right hand done in good faith – valid. Also Ex parte Dow (garden).

·                 Formal requirements that do render invalid = non marriage officer, minor with no consent, no witnesses.

·                 Material requirements that do render invalid = same sex, already married, related, under age of puberty, mentally ill.

 

CONSEQUENCES:

 

·                 If void ab initio (from outset) does not affect status. No consequences of the marriage takes place, children are born extra-marital, etc.

·                 Either party/3^rd party may raise point- do not need a court order although a declaratory order better. (No discretion).

·                 Cannot ratify except – Min of Home Affairs (sec 26) empowers minister to ratify where not consent.

·                 Also exception with putative marriages in that some consequences attach to marriage even if void.

·                 Bona fide party may claim delictual action for satisfaction from other party.

 

 

2.       VOIDABLE:

·                 Definition – grounds are present before/ at time of wedding – on which the court can set aside the marriage.

·                 Grounds for setting aside = minority ( Sec 24A(1) Marriage Act ) if not consent of parents, material mistake (identity), duress, undue influence, stuprum ( pregnant as result of extra marital sexual intercourse with another man before marriage and husband is unaware), impotence, sterility ( Venter v Venter NB  that not only sterile also conceal it).

 

 

CONSEQUENCES:

 

·                 Takes place, stay in force and have all legal consequences of a valid marriage until set aside by court order.

·                 Court order is essential and not declarative as in the case of void marriage.

·                 Therefore affect status during subsistence.

·                 If set aside – RETROACTIVE.  (Meaning changes as if marriage did not take place.

·                 Some interest are however protected – 3^rd parties, children Sec 39 Children’s act.

·                 Divorce vs. annulment: grounds present before or at marriage, divorce after.

·                 Annulment cannot claim maintenance, redistribution or forfeiture as Divorce Act is not applicable.

 

 

3.       PUTATIVE

 

·                 Definition: when one party /both enter into civil marriage while being unaware at that time that marriage void.

·                 Eg not aware brother and sister (within prohibited degree of relation).

·                 Requirements are therefore: one /both parties unaware of defect, all formalities had to be complied with, solemnized.

 

CONSEQUENCES:

·                 Although putative marriage is void ab initio it has some legal consequences for as long as a party/both bona fide.

·                 As soon both are aware the marriage stops being putative.

·                 Can never declare a putative marriage valid, can purely declare that relationship is putative with result that as from date to date of knowledge certain consequences.

·                 Children – born within marriage.  When application made to declare putative =then court also make declaratory order that children are within marriage.  (Bam v Bhabha) and court can make order as to parental responsibilities and rights that is in the child’s best interest.

·                 Patrimonial = if both bona fide and no ANC (IN), If one party bona fide = then treated (IN) if to benefit of Bona fide party. 

·                 Except if married in community at time of 2^nd marriage – then his asserts fall in estate of 1^st marriage ( Zulu v Zulu)

·                 If ANC= if both bona fide or to interest of bona fide party (OUT). Mala fide party must return all benefits received in terms of the ANC.