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SECTION 1 Marriage law
STUDY UNIT 1 The legal requirements for a civil marriage
Civil marriages are monogamous and may only be entered into by persons of the opposite sex. Civil
marriages are governed by the common law and various Acts. an engagement is not a legal
requirement for a civil marriage.
A civil 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 (devoted to 1 person). Muslim and
Hindu marriages on the other, for it refers to a union between one man and one woman, while
customary, Muslim and Hindu marriages permit polygyny (that is, husbands are allowed to take
more than one wife). It is undesirable to describe a civil marriage as a type of contract.
Under the Civil Union Act 17 of 2006, for the Act permits civil unions between parties of the same
sex.
Civil Marriages
Parties must have capacity to act in order to be able to enter into a valid civil marriage. Therefore,
persons such as the mentally ill and infantes (that is, persons below seven years of age), are totally
incapable of entering into a civil marriage. Others, like minors who are over the age of puberty (12
years for girls and 14 years for boys), need consent to supplement their limited capacity to act.
De Villiers JP concluded that someone who has been placed under curatorship because he or she is
unable to manage his or her own affairs may enter into a civil marriage without his or her curator’s
consent if he or she actually has capacity to act when marrying. A declared prodigal, in contrast,
may not enter into a civil marriage without having obtained his or her curator’s consent, or, if he or
she does marry without such consent, the civil marriage is out of community of property. In
Mitchell v Mitchell this state of uncertainty was left unresolved.
If someone is de facto (that is, in fact) mentally ill at the moment he or she enters into a civil
marriage, the marriage is void as a result of the person’s incapacity to act. Declaring someone
mentally ill does not on its own affect the person’s capacity to act. If a person who has been
declared mentally ill is of sound mind at a particular moment (that is, if he or she is capable of
understanding the nature and consequences of the juristic act and is able to make rational
judgements concerning his or her actions), he or she is considered to have full capacity to act. A
marriage which is concluded during such a lucidum intervallum (that is, a clear moment) is valid.
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. In Francescutti v Francescutti; Ex parte Francescutti it was
wrongly held that incapacity to manage one’s own affairs invariably results in incapacity to marry.
Minors between seven and 18 years of age have limited capacity to act and therefore cannot
conclude valid juristic acts by means of which they incur obligations, unless they have the consent of
their parents or legal guardians. Such consent is therefore also required for a minor to enter into a
valid civil marriage. Section 24(1) of the Marriage Act 25 of 1961 specifically provides that a marriage
officer may not solemnise a minor’s marriage “unless the consent has been granted and furnished to
him in writing” by the guardians. Whether the requirement that the consent must be “in writing”
means that oral consent is invalid, is unclear. In addition, section 12 of the Act stipulates that a
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marriage officer may not solemnise a civil marriage unless each of the parties either produces his or
her identity document or furnishes the marriage officer with a prescribed affidavit.
Only a material mistake excludes agreement. The only forms of material mistake which are
recognised in connection with a civil marriage are a mistake concerning the identity of the other
party (that is, error in personam) (the mistake is not material unless the misunderstanding was
caused by misrepresentation by the other party. a mistake which is not material is irrelevant does
not constitute a ground for dissolution of the marriage. Thus, for example, a mistake about the other
party’s name, surname or religion is irrelevant) and a mistake concerning the nature of the juristic
act (that is, error in negotio). Owing to the nature of the marriage ceremony, the only form of
mistake that occurs in practice is error in negotio. Such a mistake may occur when, for example, one
of the parties has the firm intention of entering into a civil marriage while the other is under the
impression that he or she is merely registering an engagement or is entering into a customary
marriage. The marriage should not be void but voidable
Given the unique nature of a civil marriage, misrepresentation concerning very few matters is
regarded as sufficiently serious. Prenuptial stuprum is one of these. Thus, a husband can have the
civil marriage set aside if he can prove that at the time of the wedding, his wife concealed the fact
that she was pregnant by another man, and that he had been unaware of this state of affairs. Or the
concealment by one of the parties that he or she is either impotent or sterile.
If one of the spouses was forced to consent to the civil marriage by duress, the marriage is voidable.
In Smith v Smith the woman was coerced to such an extent by her father and prospective husband
that she was completely dazed and lacked any will of her own during the wedding. The court
concluded that the duress rendered the marriage voidable and therefore set it aside.
Although there is no direct authority for the premise that undue influence renders a civil marriage
voidable, it is submitted that this should be the case.
Generally, an unlawful civil marriage is void.
Civil marriages are monogamous. Therefore, neither prospective spouse may be a party to another
civil marriage, a customary marriage or a civil union when he or she enters into a civil marriage. A
civil marriage which is concluded in violation of this prohibition is void and bigamous. a second civil
marriage would be putative if the married spouse believed in good faith that he or she was legally
divorced while this was not the case, or if the unmarried spouse was unaware of the other spouse’s
existing civil marriage.
Although the Civil Union Act permits same-sex couples to enter into a civil union, civil marriages are
still reserved for people of the opposite sex. The rule that persons of the same sex may not enter
into a civil marriage with each other affects not only homosexual but also transsexual persons. A
transsexual person is somebody who suffers from gender-dysphoria syndrome; in other words,
anatomically the person belongs to either the male or female sex, but psychologically the person
identifies with the opposite gender. In terms of the Alteration of Sex Description and Sex Status Act
49 of 2003, a person who has undergone sex reassignment surgery may apply to the Director-
General of Home Affairs for the alteration of his or her sex description in the register of births. The
application must be accompanied by reports by the medical practitioners who performed the sex
reassignment surgery. This means, inter alia, that the person may then marry someone of his or her
former sex. For example, a man who has had sex reassignment surgery to become a woman may
marry a man.
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An adoptive parent may not marry his or her adopted child. For the rest, however, adoption does
not render a civil marriage invalid if it would otherwise have been valid. Thus, if an adoptive parent
adopted two children who were not related by either blood or affinity and could therefore legally
enter into a civil marriage with each other, they would be able to marry despite the adoption.
Our law prohibits a civil marriage between persons who are within certain degrees of relationship.
Civil marriages which violate this prohibition are void. We explain the concepts of “consanguinity”
and “affinity”, as a proper grasp of these terms is vital for understanding the prohibited degrees of
relationship.
Consanguinity refers to blood relationship; in other words, it refers to the relationship which is
created by birth between persons who have at least one common ancestor. Consanguinity may exist
in either the direct line, that is, between ascendants and descendants (such as father and daughter,
grandmother and grandson), or the collateral line, that is, between blood relations who are not
related to one another in the direct line, but are related through a common ancestor (such as
brother and sister, cousins, uncle and niece).
Affinity refers to the relationship which comes into being between a married person and the blood
relations of his or her spouse, as a result of the marriage. For legal purposes and in the context of
civil marriages, affinity is restricted to the blood relations of the other spouse.
In this way, a man’s wife’s sister (that is, his sister-in-law) and his son’s wife (that is, his daughter-in-
law) are his relations by affinity, but they are not relations by affinity of his brother. As with
consanguinity, affinity can exist in either the direct or the collateral line. In the direct line, affinity
exists between a husband and his wife’s blood relations in the direct line and between a wife and
her husband’s blood relations in the direct line. For example, a husband is related by affinity in the
direct line to his mother-in-law and his stepdaughters. Affinity in the collateral line exists between a
husband and his wife’s blood relations in the collateral line and between a wife and her husband’s
blood relations in the collateral line. For example, a wife is related to her brother-in-law by affinity in
the collateral line.
Blood relations in the direct line (that is, ascendants and descendants) may not enter into a civil
marriage with each other. Such a marriage is absolutely forbidden. For example, no valid civil
marriage is possible between a father and his daughter or a grandfather and his granddaughter – E.G
Collateral blood relations. neither brother and sister, nor uncle and niece, nor granduncle and
grandniece are allowed to enter into a civil marriage with each other. Civil marriage between cousins
is permissible, however. Blood relations in the collateral line may not enter into a civil marriage
with each other if either of them is related to the common ancestor within the first degree. (One
degree of consanguinity separates one generation from the generation immediately following it. E.G
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Relations by affinity in the direct line
Persons who are related to one another by affinity in the direct line may not enter into a civil
marriage with each other. Thus, for example, a man may not enter into a civil marriage with his
stepdaughter, or his wife’s mother, grandmother or granddaughter. To illustrate:
Relations by affinity in the collateral line
By virtue of the provisions of section 28 of the Marriage Act, there is no prohibition on a civil
marriage between a person and his or her relations by affinity in the collateral line. In the
foregoing sketch, E is Y’s daughter from a previous civil marriage and A is the son of X, also from a
previous civil marriage, while O and P are the children born of the civil marriage between X and Y. It
is important to bear in mind that a spouse only becomes related by affinity to the other spouse’s
blood relations and that the blood relations of one spouse are not related to the blood relations of
the other spouse. A and E, being stepbrother and stepsister, are not related to each other and may
thus enter into a civil marriage with each other. (A and P are half-brother and half-sister, their
common ancestor being X, and thus – both of them being related to X in the first degree – are not
allowed to enter into a civil marriage with each other.) After the dissolution of the civil marriage
between X and Y, X may enter into a civil marriage with N, L or M, while Y may enter into a civil
marriage with J, K or I.
