Notes Chapter 3

MODULE 2 NOTES :

 

The legal requirements for the conclusion of a valid civil marriage:

 

1.       Definition:

Traditionally defined a civil marriage =    legally recognized

                                                            Life-long voluntary union

                                                            Between one man and one women

                                                            To the exclusion of all other parties.

 

Consensus (agreement) = contract, but contracts are entered into to create obligations which is not the main purpose of a marriage, hence undesirable to describe a civil marriage as a type of contract.

 

2.       Critic:

 

1. The high divorce rate mocks the “life-long” union; therefore rather legally recognized voluntary union between one man and one woman…..

 

Difference civil and customary/Hindu /Muslim marriage = that civil union ONE MAN ONE WOMEN, whilst remainder allows for polygny.

 

2. Same sex marriages ito Civil Union Act, act 17 of 2006.

 

 

3.       Requirements

 

3.1           Capacity to act

• Agreement therefore needs meeting of minds, therefore must be able to act.
• Totally incapable = infants, mentally ill or limited capacity ( minors)
• Prodigal – uncertain what stance if prodigal get married without consent of curator - Pienaar v Pienaar’s Curator and Mitchell v Mitchell – view is that should be able to get married without consent. (in/out?)
• Mentally ill – if at moment clear is valid (lucidum intervallum).if declared mentally ill onus of proof shifts to him to proof –whilst if not declared mentally ill the onus on the one who alleges. Curator may not consent to a civil marriage on behalf of a mentally ill.
• Placed under curator ship – incapable of managing own affairs, Pienaar case = if understand nature can marry. If no curator appointed yet then test-understand consequences or not.
• Minors – 7-18 years of age have ltd capacity, therefore must have consent of parents/guardian. Consent must be in writing (sec 24(1) Marriage Act 25 of 1961. Sec 27 –if suspect not of age may refuse to solemnize the marriage unless proof (id).

-        Consent required: legitimate – both parents, even if parents are divorced.

-        Illegitimate – if both have guardianship – both consent, otherwise only mother.  If the mother a minor then her guardian’s consent.

-        Sec 18(5) Children’s Act 38 of 2005 states all persons with guardianship must consent.

-        Legal guardian – in will /if no will high court. Guardian cannot consent to marriage between him and minor. 

-        Min of Home Affairs – Sec 26(1) of Marriages Act boy below 18 and girl under 15 obtain written consent of minister.  Still require parents consent additional to Minister Consent. If no consent null and void, unless minister ratify it. Ratify if ito Sec 26(2) regards desirable and in interest. 

-        Presiding officer- children’s court – Marriage act provides if parents consent cannot be obtained then presiding officer of children’s court.  Not grant if consent is withhold. If withhold must go to High court.  Presiding must enquire if ANC and assist. If presiding refuse consent then High court. Must ask presiding before high court sec 25 (4).

-        High court –one/both parents/guardian/presiding officer withhold consent –Sec 25(4) Marriage Act can apply to high court. FOR THIS PURPOSE THE MINOR IS REGARDED AS HAVING CAPACITY TO LITIGATE. Grant if 2 tests are met together , namely one if refusal is without good reason and 2 if in minor’s interest. B v B (not separate tests). Can also order marriage regime.

 

• No consent required:

-        Previously entered into a valid marriage.

 

• Effect of absence of consent:

-        Without consent of minister = nul and void Sec 26(2) unless minister ratify same. 

-        Without consent of parents/guardian/presiding officer = voidable. May be set aside on application by either minor parent before becomes a major, or three months after become a major.  Only set aside if convinced that dissolution is in minor’s interest.

 

Patrimonial effects without consent:

-        Sec 24 Matrimonial property act – if set aside: court may make an order as it deems fit.  Look at factors eg age, financial means etc Sec 24(1) guidelines.

-        If not set aside:  Sec 24(2)  consequences the same as if were of age when got married.

-        Before commencement of the act? :

 Neither sec 24 marriage act or 24A matr property act clear.

 

 

 

 

 

3.2           Agreement

Ask at ceremony – if minor must also personally confirm.

 

* Mistake – only material mistake excludes agreement. – identity and juristic act ‘s nature.

Marriage of convenience – Maartens v Maartens for residency.  Mistake about name, religion not grounds.

 

* Misrepresentation – voidable if of serious nature eg sluprum ( pregnant with another man and was unaware of it ), sterile or impotent.  

 

* Duress: voidable. Smith v Smith –women dazed. Lacked will.

 

* Undue influence: voidable.

 

3.3           Lawfulness

 

• If existing marriage/union: civil marriages are monogamous. – void can be putative if believed he was divorced.
• Same sex: civil union act allow same sex civil unions, civil marriages still only opposite sex. If reassignment surgery and reg as such then may marry women.
• Adoptive parents: the adopted children can marry if not blood related, but parents may not marry the children.
• Prohibited degrees of relation: void. Consanguinity ( blood relation) direct line ( between ascendants and descendants daughter, grandmother) or collateral line ( related not by direct line but by common ancestor eg cousins, brothers). Affinity ( relationship between married person and blood relations of his/her spouse as a result of marriage. Also either direct (husband and mother in law)or collateral line( husband and brother in law). 

- No brother/sister, grandfather /grandchild, uncle /niece. Cousins may marry.  Therefore blood relations in collateral line may not enter into civil marriage with each other if either is related to common ancestor within 1^st degree.  Degree- count number of people without common ancestor. , nor affinity in direct line. In collateral line - 

• No direct line marriages:
• Legal guardians: only if consent of high court.
• People different race groups: immorality and prohibition of mixed marriages amendment act 72 of 1985- sec 7 provides that DG of home affairs may direct in writing that a marriage is valid. Before DG issue same other spouse must consent to it etc page 31.

 

3.4           Formalities

 

• Marriage officer – all magistrates, comm. And justice of piece are ex officio for district where hold office. Diplomats etc may be appointed by min of home affairs. , also by denomination –church.
• Outside RSA – only if both parties are RSA citizens and domiciled in RSA.
• During ceremony – personally present, anytime and any day (not obliged other time than 08h00-16h00).  Must be in church /building/house with open doors presence of at least 2 witnesses. (Sec 29(2) marriage act- ex Parte Dow (in garden – still legal), must ask specific questions  separately – any objection etc. parties must reply in positive, give right hand declared lawfully married.  If error or oversight –still valid if in good faith.
• Registration – must sign reg, 2 witnesses and marriage officer immediately after the wedding then send marriage reg to regional/district representative of dept of home affairs. Copy of entry in register serves as prima facie proof (face of it). Fail to reg does not effect validity.  If no cert other evidence can proof marriage.