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Summary PVL2601 Summarized (Exam Notes)
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- University Of South Africa (Unisa)
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1FAMILY LAW COURSE NOTES 2007 (1)
SECTION 2: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A CIVIL MARRIAGE
“Marriage” is traditionally defined as the legally recognised life-long voluntary union between one
man and one woman to the exclusion of all other persons. This relates only to civil marriages,
since customary and Muslim marriages permit polygyny. Furthermore, with the enactment of the
Civil Unions Act, a “civil union” is defined as the voluntary union of two persons who are both 18
years of age or older, which is solemnized and registered by way of either a marriage or a civil
partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it
lasts, of all others”.
Marriage is not a contract. Because marriage is based on consensus, the parties must clearly
have capacity to act in order to be able to enter into a valid marriage.
Capacity to act
Persons who have no capacity to act, such as the mentally ill and infants (persons below 7 years
of age), are totally incapable of entering into a marriage. Others, like minors who are over the
age of puberty, need consent to supplement their limited capacity to act.
(1) Declared prodigals
The prodigal may marry without his or her curator’s consent. The weight of opinion favours the
rule that the prodigal’s advantage determines whether the marriage is in or out of community of
property, otherwise, the selection of the matrimonial property system would amount to an
unauthorized disposition of the prodigal’s property.
(2) Mentally ill persons
If someone is de facto mentally ill at the moment he or she enters into a marriage, the marriage
is void as a result of his or her incapacity to act. A person is regarded as mentally ill and
consequently lacking the necessary capacity to act, not only when he or she does not
understand the nature and consequences of the juristic act, but also when hallucinations caused
by a mental illness prompt him or her to enter into the marriage.
A marriage concluded during a lucidum intervallum is perfectly valid. The fact that someone has
been certified mentally ill however places the burden on him or her to prove that he or she is
actually normal, while in the absence of certification, it is the person who alleges mental illness
who must prove the presence of mental illness.
(3) Persons who have been placed under curatorship because they are incapable of managing
their own affairs
Competent to conclude a valid marriage without the consent of his or her curator.
(4) Minors
Minors between 7 and 21 have limited capacity to act and thus cannot conclude valid juristic acts
by means of which they incur obligations unless they have parental consent. Parental consent is
therefore required for a minor to enter into a valid marriage. Section 24(1) of the Marriage Act
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provides that a marriage officer may not solemnize (conduct a marriage ceremony) a minor’s
marriage, unless the consent which is legally required for the purpose of contracting the
marriage has been granted and furnished to him in writing.
Section 27 – if a marriage officer reasonably suspects that the age of a prospective spouse is
such that he or she may not marry without having obtained some other person’s consent, the
marriage officer may refuse to solemnize the marriage unless he or she is furnished with the
required consent in writing.
Section 12 – a marriage officer may not solemnize a marriage unless each of the parties either
produces his or her identity document or furnishes the marriage officer with a prescribed
affidavit.
(a) consent required for the marriage of a minor
(i) parents
If both parents are alive, both must consent to the marriage of their legitimate minor child, unless
the court orders otherwise or sole guardianship has been granted to one of them. If the minor
was born out of wedlock, the mother’s consent is needed as she is the child’s guardian.
(ii) legal guardian
An orphan for whom a guardian has been appointed must obtain his or her guardian’s
permission to marry.
(iii) Minister of Home Affairs
Section 26(1) of the Marriage Act - a boy below the age of 18 years and a girl below the age of
15 years may not marry without the written permission of the Minister of Home Affairs. Consent
will only be granted if the marriage is deemed ‘desirable’. Even if the Minister’s consent is
obtained, all the other legal requirements still have to be complied with, so the parents’ consent
must also be obtained and the prescribed formalities for a marriage must be met. Ministerial
consent is not required if the court has consented to the marriage. If a boy below the age of 18
years or a girl below the age of 15 years marries without ministerial consent, the marriage is null
and void, but section 26(2) empowers the Minister to ratify the marriage if:
1. he or she considers the marriage desirable and in the interests of the parties
2. the marriage was in all other respects solemnized according to the Marriage Act’s provisions;
3. there is no other lawful impediment to the marriage.
The Minister’s power only applies to marriages of girls between 12 and 15 years of age and boys
between 14 and 18 years of age.
(iv) Commissioner of child welfare
Where either of the minor’s parents, or both of them, or his or her guardian is absent, mentally ill,
or in any other way incompetent to consent to his or her marriage, or if the minor can for any
other good reason not obtain the consent of his or her parents or guardian, consent may be
granted by the commissioner of child welfare. The commissioner of child welfare must also
determine whether it would be in the minor’s interests to enter into an antenuptial contract. If so,
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the commissioner must assist the minor in the execution of the antenuptial contract and his or
her assistance is deemed to be the assistance of the minor’s parent or guardian.
If the commissioner refuses to consent to the marriage, the minor may approach the high court
for consent in terms of section 25(4) of the Marriage Act. However, where application must be
made to the commissioner of child welfare in terms of section 25(1), the minor may not bypass
the provisions of the section by applying directly to the court.
(v) high court
Section 25(4) – if one or both parents, the legal guardian, or the commissioner of child welfare
withholds consent, the minor may approach the high court for permission to marry in terms of
section 25(4) of the Marriage Act. For purposes of this particular application, the minor is
regarded as having capacity to litigate.
Consent will only be granted if:
1. the court is of the opinion that the refusal to consent by parents, etc. is without adequate
reason; and
2. contrary to the minor’s interests – Alcock v Alcock.
B v B: these tests are complementary and must not be considered separately. The court must
take all the circumstances into account and weigh the reasons for the parents’ refusal, with due
allowance for the fact that the parents are in a better position than the court to make a decision
of such a personal nature.
Even if the minor’s application is unopposed, the court will inevitably override the parent’s refusal
to grant consent. The court will then also make an order regarding the matrimonial property
system which is to apply in the marriage and if necessary, it may order that a curator be
appointed to assist the minor in the execution of an antenuptial contract.
(b) instances in which a minor requires no consent to marry
(i) a minor who has already been married
Section 24(2) – “minor” does not include a person below the age of 21 but who has previously
been married and whose marriage has been dissolved by death or divorce.
(ii) a person below 21 years of age who has been declared a major
Age of Majority Act – someone who has been declared a major in terms of this Act is deemed in
all respects to have reached the age of majority. An emancipated minor does not have capacity
to marry without consent.
(c) the effect of absence of the necessary consent
(i) the effect on the validity of the marriage
Section 24A(1) of the Marriage Act: a minor’s marriage is not void merely because his or her
parents or guardian or the commissioner of child welfare has not consented to it. However, the
court may dissolve the marriage on the ground of lack of consent. The application to have the
marriage set aside may be made by:
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1. the minor’s parents or guardian, before the minor attains majority and within six weeks from
the date on which they become aware of the existence of the marriage;
2. the minor himself or herself, before he or she attains majority or within three months
thereafter.
The court may not set the marriage aside unless it is satisfied that the dissolution of the marriage
is in the minor’s interest.
(ii) the effect of the patrimonial consequences of the marriage
Section 24 of the Matrimonial Property Act governs the patrimonial consequences of a marriage
a minor entered into without consent.
Patrimonial consequences if the marriage is set aside
Section 24(1): the court may make an order with regard to the division of the matrimonial
property of the spouses “as it may deem just”. The court will probably have regard to factors
such as the respective ages of the parties, their financial circumstances, their wishes and
whether the major spouse took advantage of the inexperience of the minor spouse and
benefited at the latter’s expense.
The patrimonial consequences if the marriage is not set aside
Section 24(2): the patrimonial consequences of the marriage are the same as if the minor were
of age when the marriage was entered into and any antenuptial contract in terms of which the
accrual system is included and which has been executed with a view to such a marriage, is
deemed to have been validly executed.
2 possibilities:
1. if the parties did not enter into an antenuptial contract, the primary matrimonial property
system, namely community of property, applies;
2. if the parties entered into an antenuptial contract which includes the accrual system, the
antenuptial contract is valid even though the minor did not have the necessary consent to
conclude the contract. (An antenuptial contract which excludes the accrual system is invalid).
(iii) the effect of the Matrimonial Property Act on a marriage a minor concluded without
consent before the commencement of the Act
The marriage of a minor is not void merely because the required consent is lacking. Section
24A of the Marriage Act therefore applies to all marriages minors entered into without consent.
With regard to section 24 of the Matrimonial Property Act, it could be argued that the wording of
the section does not rebut the presumption that the legislator only intends to regulate future
cases (presumption against retroactivity).
The person who marries a minor without the latter having first obtained the necessary consent
thereto, may never enjoy any patrimonial benefit from the marriage. Applying this rule, our
courts have in the past declared such marriages either in or out of community of property
depending upon which system was in the minor’s best interests at the time he or she entered
into the marriage. Consequently, the courts judged the circumstances as they were at the
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