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Summary PVL2601 Family Law Summarized Notes

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PVL2601

Institution
University Of South Africa

Book
Family Law

PVL2601 Family Law Summarized Notes. PVL2601 FAMILY LAW SUMMARIZED NOTES LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE: Marriage is traditionally defined as the legally recognized life long voluntary union between two parties to the exclusion of all others.  Capacity to ac...

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pvl2601 family law summarized notes

Book Title:Family Law

Author(s):Jonathan Herring

Edition:Unknown
ISBN:9780199668526
Edition:1

Institution
University of South Africa
Course
PVL2601

D0ctorMackenzie

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PVL2601 FAMILY LAW SUMMARIZED NOTES

LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE:

Marriage is traditionally defined as the legally recognized life long voluntary union between two
parties to the exclusion of all others.

 Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs
marriage is void.
 Infant (children below age of 7) do not have the capacity to act.
 Prodigals (a person with normal mental ability but who is unable of managing his or her own
affairs because he or she squanders his or her assets in an irresponsible reckless way as a
result of some defect in his or her power of judgment of character) may marry without consent.

A marriage is not valid unless it is lawful for the parties to marry

Ex parte Dow – applicant applied for an order declaring this marriage null and void because the
wedding had taken place, in conflict with section 29(2) of the marriage act, in front of a garden.
Marriage was declared valid.

Consensus – forms the basis of and is fundamental requirement for entering into a marriage. Both
parties must have the will to marry each other. Error in persona and error in negotio are the only
forms of material mistakes recognized in connection with marriage.

Misrepresentation – if one party misleads another prior to marriage by making false statements or
creating a false impression by concealing information which should have been divulged and thereby
persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious
nature.

Duress- if one spouse was forced to consent to the marriage by duress, the marriage is voidable.In
smit v smit the woman was coerced to such an extent by her father and prospective husband that she
appeared dazed and lacked the will of her own during the wedding. The court concluded that the
duress rendered the marriage voidable and therefore set marriage aside. Undue influence also
renders a marriage voidable; generally an unlawful marriage is void.

Persons within the prohibited degrees of relationship – our law prohibits marriage between persons
within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void.

RELATIONSHIPS prohibited -

 Consanguinity – relationship which is created by birth between persons. It is irrelevant if
legitimate or illegitimate (blood relationship) – direct line – your parents, your children.
 Consanguinity (blood relationship)– collateral line – your brothers ,sisters, nephews ,nieces
and cousins
 Affinity - relationship that comes into place by marriage and blood relations of spouses
(relationship by marriage) – direct line – your parents in law, your step children
 Affinity (relationship by marriage) – collateral line – your sister in law , brother in law
 Ascendants – your grandparents, your parents
 Descendants – your children, your grandchildren

BLOOD LINES:

,  A woman may not marry her deceased husbands father
 A man may not marry his sisters daughter
 A man can marry his deceased’s brother wife
 A stepchild is a relative by affinity in the direct line
 You and sister in law – affinity in the collateral line

Formalities preceding the marriage ceremony – section 12 of the marriage act provide that a
marriage officer may not solemnize a marriage unless each party furnishes his or her identity
document or prescribed affidavit. For marriage both parties must be present personally. No one
can conclude a valid marriage through representation. Marriage officer who solemnizes a
marriage, the parties thereto and 2 competent witnesses must sign marriage register immediately
after marriage has been solemnized.

VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES:

VOID MARRIAGE - a void marriage is one which has simply never come into existence. The
position is thus exactly as it would have been had the “marriage” never been concluded

Ground for nullity –

 Marriage is solemnized by someone who is not a competent marriage officer
 No witnesses present at marriage
 One party is already married
 The parties are related to each other within the prohibited degrees of relationship
 One of the parties is below age of puberty
 One of the parties is mentally ill

A CONSEQUENCE OF A VOID MARRIGE – a marriage is void ad initio – from the outset – does not
have legal consequences of a valid marriage.

VOIDABLE MARRIAGE – is a marriage in which grounds are present either before or at the time of
the wedding, on the basis of which the court can be requested to set the marriage aside.

Grounds for setting aside:

 Minority
 Stuprum – extra marital sexual intercourse with a third party before the marriage
 Material mistake
 Impotence
 Sterility

CONSEQUENCES OF A VOIDABLE MARRIAGE:
A voidalbe marriage remains in force and has all the normal legal consequences of a valid marriage
until it is set aside by a court order.

PUTATIVE MARRIAGE – exists when one of the parties to the marriage or both of them married
unaware that there is a defect which renders the marriage void. At the time of entering into the
marriage the particular party therefore believes in good faith that he or she is entering into a valid civil
marriage (example parties did not know that they were related within the prohibited degrees of
relationship). Both parties must be unaware of defect.
CONSEQUENCES OF A PUTATIVE MARRIAGE:

, Is void ab initio, it has some of the legal consequences of a valid marriage for as long as at least one
of the parties is bona fide, one of the parties on reasonable grounds was unaware of defect that
renders the marriage void.

PRESCRIBED CASE – MOOLA V AULSEBROOK:

The applicant and her deceased husband had gone through a marriage ceremony in accordance with
Islamic rites by a priest who was not a duly appointed marriage officer. Neither spouse was aware
that they had to be married by a duly appointed marriage officer. The spouses lived together in
monogamy from date of wedding until the husband’s death. They had seven children. When the
husband died it was discovered that his will was invalid and his estate therefore had to devolve
intestate. The applicant applied for an order declaring the children to be legitimate to enable them to
inherit from their father. (At that time extra marital children could not inherit from their father in terms
of the rules of intestate succession). The application was based on the argument that the marriage
between the children’s parents was a putative marriage even though the statutory requirements for
solemnization of a marriage had not been complied with. The application was granted. In this case
the court had to decide whether or not a putative marriage can come into existence if the marriage
was not duly solemnized.

At common law due solemnization was a prerequisite for a putative marriage. There are however
many cases which are authority for the view that as long as the marriage was “contracted openly and
in accordance with rituals and ceremonies not inconsistent with our law” it can be putative (ex parte
anzar, ex parte l , ex parte soobiah, ex parte Reynolds)

PRESCRIBED CASE - SOLOMONS V ABRAMS: due solemnization as a requirement for a putative
marriage.
The parties entered into a Muslim marriage. There was no evidence that they attempted or intended
to comply with the requirements of the marriage act. Nor did they make any attempt to establish what
those requirements were. They did not think that they had entered into a civil marriage. The priest did
not hold himself out as being authorized to solemnize a civil marriage or as purporting to solemnize
such a marriage. The applicant sought an order declaring that the union between the parties was
putative civil marriage and that the children born thereof were legitimate. The application w
dismissed.

Parties did not think that the moulana was a marriage officer. Their evidence is not that they thought
that they had become spouses in a civil marriage. There is no evidence of attempting or intending to
comply with the requirements of the marriage act.

THE INVARIABLE CONSEQUENCES OF A CIVIL MARRIAGE:

Refers to personal consequences to marriage.

Status of spouses change –
 neither spouse may marry anyone else whilst marriage subsists,
 spouses are guardians of children born of marriage,
 relationship by affinity is created,
 spouses married in cop capacity to act is restricted,
 minor attains majority and retains it even if marriage dissolved.

Legal concept of consortium Omnis vitae is used in our law to determine when a marria
relationship is no longer normal. This concept includes material and immaterial things. By this we
mean that this concept does not have a precise definition as virtually all the objects of all the rights

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