PVL2601 – Updated
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PVL2601:
Study unit 1 - The legal requirements for a civil marriage:
Requirements for a civil marriage:
1. The parties must be able to act
2. There must be an agreement between the parties to enter into a civil marriage
with each other.
3. The m...
Study unit 1 - The legal requirements for a civil marriage:
Requirements for a civil marriage:
1. The parties must be able to act
2. There must be an agreement between the parties to enter into a civil marriage
with each other.
3. The marriage between the two parties must be legal.
4. The prescribed formalities must be complied with.
Capacity to act:
1. Declared prodigals: Can enter into a civil marriage without curator’s
consent.
It is unclear, which matrimonial property system operates in such a
marriage. The weight of academic opinion favours the rule that the
prodigal’s advantage determines whether the marriage is in or out of com-
munity of property, because selection of the matrimonial property system
would otherwise amount to an unauthorised disposition of the prodigal’s
property.
2. Mentally ill persons: Can only enter into a civil marriage during a
ludicum intervallum.
Owing to the highly personal nature of the juristic act, a curator may not
consent to a civil marriage on behalf of a mentally ill person.
3. Persons under curatorship due to a disability or chronic illness: Can
enter into a civil marriage without curator’s consent.
A person may marry if he or she is able to understand the nature and
consequences of the juristic act and make rational judgements concerning
his or her actions at the time of getting married.
4. Minors: Can only enter into a civil marriage with the consent of their
parents/legal guardians.
Section 24(1) of the Marriage Act 25 of 1961 specifcally provides that a
marriage ofcer may not solemnise 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”. Whether the
requirement that the consent must be “in writing” means that oral
consent is invalid, is unclear. At common law the consent could be given
orally.
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Section 27 of the Marriage Act further lays down that if a marriage ofcer
reasonably suspects that a prospective spouse is of an age at which he or
she may not enter into a civil marriage without consent, the marriage
ofcer may refuse to solemnise the marriage unless he or she is furnished
with the written consent or satisfactory proof that consent is not needed.
In addition, section 12 of the Act stipulates that a marriage ofcer may not
solemnise a civil marriage unless each of the parties either produces his or
her identity document or furnishes the marriage ofcer with a prescribed
afdavit.
Agreement:
1. Mistake:
Factors which can have an efect on the consensus:
Mistake concerning the identity of the other party (error in
persona) or mistake concerning the nature of the juristic act
(error in negotio). Only in respect of civil marriage.
Only a material mistake excludes agreement.
Distinguish from simulated civil marriage or civil marriage of
convenience.
Efect on the validity of a civil marriage:
Unclear whether it is void or voidable.
Simulated civil marriage: valid because parties had the intention to
conclude a civil marriage (Martens v Martens)
2. Misrepresentation:
Factors which can have an efect on the consensus:
Misleading the other party prior to the civil marriage by making
untruthful statements, or gives a false impression to the other party
by concealing information.
Only a serious misrepresentation excludes agreement.
E.g – A woman is already pregnant by another man (prenuptial
stuprum)
Efect on the validity of a civil marriage:
Voidable.
Only a serious misrepresentation can lead to a civil marriage being
set aside.
3. Duress:
Factors which can have an efect on the consensus:
, 3
One of the spouses have been forced to consent to the civil
marriage.
Smith v Smith
Efect on the validity of a civil marriage:
Voidable.
4. Undue influence:
Factors which can have an efect on the consensus:
One of the parties to a civil marriage has been influenced in his or
her choice and has been persuaded to enter into the marriage as a
result of the influence.
Efect on the validity of a civil marriage:
Voidable.
Ought to have an efect on the validity of a civil marriage.
Formalities during the marriage ceremony:
Both parties must be personally present at the solemnisation of
their civil marriage.
A civil marriage may be solemnised at any time and on any day of
the week, but a marriage ofcer is not obliged to solemnise a civil
marriage at any other time than between 08:00 and 16:00.
In terms of section 29(2) of the Act: The marriage must (“shall”) be
solemnised in a church or other building used for religious services
or in a public ofce or private dwelling house with open doors and in
the presence of the parties themselves, and at least two competent
witnesses.
Section 29(2) is couched in imperative language, and non-
compliance with this subsection should therefore, strictly
interpreted, render the civil marriage void.
In all marriage ceremonies, the prescribed marriage formula must
be adhered to. The marriage ofcer must put the following question
to each of the parties separately:
Do you, A.B., declare that as far as you know there is no lawful
impediment to your proposed marriage with C.D. here present, and
that you call all here present to witness that you take C.D. as your
lawful wife (or husband)?
If they do not, the wedding cannot proceed. If they do reply in the
afrmative, they must give each other the right hand and the
marriage ofcer then declares that the parties have been lawfully
married.
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