PVL2601 Family Law_revision_pack.
Verified Document.
,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.
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,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 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
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, 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, 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.
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