Family Law LWFL121
Chapter 5
F R A NCO IS ST E E NK A MP
(PIHE DURBANVILLE CAMPUS)
FRANCOIS.STEENKAMP@PEARSON.COM
MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com
Requirements for a civil marriage
• What do you think?
• Can you make up your ‘own version’ of the wedding vows?
• Is it legal to marry while parachuting or scuba diving?
• What does the law say?
• What is a civil marriage?
• A civil marriage is a marriage in terms of the Marriage Act or the Civil Union Act
• Marriage was traditionally defined as ‘the legally recognised voluntary union, for
life, of one man and one woman to the exclusion of all others’
• Civil marriages are now permitted between same-sex couples, and thus civil
marriage must be redefined as ‘the legally recognised voluntary union, for life, of
two people to the exclusion of all others’
Requirements for a civil marriage (cont.)
• This form of marriage is based on the traditional common law marriage
discussed by Roman-Dutch common law writers such as Grotius and Voet
• Many of the traditional rules of common law marriage remain in the modern law
of civil marriage
• E.g. rules about spousal support & cohabitation
• However, several traditional rules of common law marriage have been abolished
or have been substantially changed by statute
Roman emperor
Justinian
Ulrik Huber
Requirements for a civil marriage (cont.)
• Modern civil marriage is highly regulated by statute
• E.g. the Matrimonial Property Act & the Divorce Act
• Civil marriage is the more appropriate term, i.e. as opposed to common law
marriage
• The term ‘civil marriage’ is often used to distinguish this form of marriage from
customary law marriage or from religious marriage
Requirements for a civil marriage (cont.)
• Customary law has equal standing and status to that of non-customary civil law
in the South African legal system
• Customary law marriage has equal status to ‘civil marriage’ and customary law
marriage can be understood as a form of civil marriage in the sense that it is a
marriage in terms of the laws of South Africa
• The Constitutional Court adopted the distinction between ‘customary marriages’
(African) and ‘civil marriages’ (Western)
Requirements for a civil marriage (cont.)
• See ‘Obiter’ box on p. 237
• ‘Civil partnerships’ in terms of the Civil Union Act have identical legal standing
and identical legal consequences to ‘civil marriages’ in terms of the Marriage Act
or Civil Union Act
• The only difference between a ‘civil partnership’ and a ‘civil marriage’ is
terminological: One is called a ‘civil marriage’ and the other a ‘partnership’
• Do you think this distinction is justified and/or tenable?
Requirements for a civil marriage (cont.)
• See Lesbian & Gay Equality Project and Others v Minister of Home Affairs – Noting
the symbolic, social and cultural significance of the word ‘marriage’
• Many people want their legal relationship to be called a ‘marriage’ and to be
publicly recognised as such
• Other people do not want to ‘marry’ even though they want their relationship to
have the same legal benefits and consequences as a marriage
Requirements for a civil marriage (cont.)
• Requirements for a civil marriage:
• There are three requirements for civil marriage:
• 1. Capacity: The parties must have the capacity to marry each other
• 2. Consensus: The parties must consent to marry each other
• 3. Formalities: The wedding must conform to the prescribed formalities
Requirements for a civil marriage (cont.)
• Capacity:
• The spouses must have the capacity to marry each other
• 2 elements:
• 1. Each spouse must have the capacity to marry (absolute capacity)
• If either of the spouses does not have the capacity to marry at all, the purported
marriage will be void ab initio
• 2. The spouses must have the capacity to marry each other (relative capacity)
• It is possible to have absolute capacity, but not relative capacity = E.g. if two
people are too closely related to each other
• Purported (alleging to be) marriages between people who are prohibited from
marrying each other are void ab initio
Requirements for a civil marriage (cont.)
• Mental illness:
• People are mentally ill if they are unable to understand the legal nature and
consequences of their acts, or if they are motivated by delusions caused by
mental illness to perform the acts
• People who are mentally ill have no capacity to perform juristic acts of any kind
and may thus have no capacity to marry
• If a person purports to marry while he or she is mentally ill, the marriage is void
and of no legal effect
Requirements for a civil marriage (cont.)
• Age:
• Children below the age of puberty (12 for girls and 14 for boys) have no capacity
to marry
• Any purported (alleged) marriage of children below the age of puberty is void
and of no legal effect
• Minors over the age of puberty may conclude a civil marriage in terms of the
Marriage Act if they have the permission of their guardians
• Boys also require the consent of the Minister of Home Affairs, as do girls who are
under the age of 15
• Minors may not conclude a civil marriage in terms of the Civil Union Act (A civil
union is defined as = ‘The voluntary union of two persons who are both 18 years
of age or older’
• Is this distinction justified/tenable?
Requirements for a civil marriage (cont.)
• Other factors:
• A declaration as a prodigal has no effect on the declared prodigal’s capacity to marry
• Insolvents retain the capacity to marry
• Those who had a curator appointed (e.g. on account of physical incapacity) may also
enter into a marriage/civil union
• Severely intoxicated people who are unable to understand the legal nature, or
consequences of their acts, have no capacity to act and therefore have no capacity to
marry
• You cannot ‘get mindlessly drunk and wake up married’
• The onus to prove incapacity is on the one who alleges it
• ‘What happens in Vegas stays in Vegas?’
• No marriage officer would ordinarily marry intoxicated people
• If the spouses should continue to cohabit after they have sobered up, the marriage
ought to be voidable and not automatically void (according to legal scholars)
Requirements for a civil marriage (cont.)
• People who are already married to someone else:
• Civil marriage is a monogamous union of two people
• No one may conclude a civil marriage (of any kind) if they are already married to somebody else,
or are married to someone else in terms of customary law
• Spouses in a monogamous customary law marriage = May conclude a civil marriage with their
customary law spouse (converting the customary law marriage into a civil marriage)
• This rule also applies to marrying the same person for a second time while the first marriage
subsists
• A mere change of the matrimonial property regime = Approach High Court for variation
• Or whilst married under the laws of a foreign country/jurisdiction
• BUT, may not conclude a civil marriage with anyone else
• A person marrying someone whilst already married = Purported married is null and void
• Civil marriage (not customary marriage), to more than one person at a time is illegal, and
constitutes the crime of bigamy
• See Part 1 of Chapter 8 for a discussion of presumption of death or missing spouse etc.
Requirements for a civil marriage (cont.)
• Capacity to marry each other (relative capacity):
• Some people have full ‘absolute capacity’ to marry, but are unable to marry each
other = Called ‘relative incapacity to marry’
• In modern South African law , the only legal impediment preventing people with
capacity to marry from marrying each other is that they are related to each other
within the prohibited degrees of relationship
Requirements for a civil marriage (cont.)
• Persons who are within the prohibited degrees of relationship:
• Our law prohibits a civil marriage between persons who are within certain
degrees of relationship
• Civil marriages which violate this prohibition are void
• Consanguinity – Refers to blood relationship (the relationship which is created by
birth between people who have at least one common ancestor)
• It is irrelevant whether the relationship arose as a result of birth out of married or
unmarried parents
• Such relations may exist in the direct line (e.g. father/daughter,
grandmother/grandson)
• Or in the collateral line (i.e. between blood relations who are not related to one
another in the direct line, but are related through a common ancestor (e.g.
brother/sister/cousin/uncle/niece)
Requirements for a civil marriage (cont.)
• 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 marriage
• For legal purposes, and in the context of a civil marriage, affinity is restricted to
the blood relations of the other spouse
• E.g. a man’s wife sister (i.e. his sister-in-law) and his son’s wife (i.e. his daughterin-law), are the man’s relations by affinity (but they are not e.g. the relations by
affinity of the man’s brother)
• Consanguinity or affinity can exist in both the direct and collateral line
• Affinity exists between a husband and wife’s blood relations in the direct lines
(e.g. husband related by affinity in the direct line = mother-in-law (mother of the
wife) or stepdaughters)
• Affinity in the collateral line = Exist between a husband and wife’s blood relations
in the collateral lines (e.g. a wife is related to her brother-in-law (brother of the
husband) by affinity in the collateral line)
Requirements for a civil marriage (cont.)
• Prohibited degrees of relationship: People who are too closely related to each
other
• People who are too closely related to each other may not marry each other
• The law distinguishes between blood relationships (relations of consanguinity)
and relationships created by marriage (relations of affinity)
• The law also distinguishes between direct lines of descent, and people who are
collaterals
• See example on p. 240
• People are related in the direct line if they are ancestors (go before) or
descendants (go after) of each other (e.g. a direct line between A and M = i.e. A is
M’s grandparent (ancestor) in the example)
• People are collaterals if they have a common ancestor but are not related in the
direct line (e.g. siblings, cousins, aunts, nephews)
Requirements for a civil marriage (cont.)
• The degrees of relationship between collaterals are calculated as follows: Count the
number of generational steps between one of the collaterals and the common ancestor,
then add the number of steps from the common ancestor to the other collateral
• The total number of steps is the ‘degree’ of the relationship between the collaterals
concerned
• See example on p. 240
• The closest degree of collateral relationship is two degrees (siblings are related to each
other in the second degree)
• People also become related to each other ‘by affinity’ through marriage
• Therefore, you can become related to people (with whom you have no blood relations)
purely by virtue of the marriage
• Relationships of affinity may be in the direct line or the collateral line
• The blood relatives of each spouse are not legally related to each other (e.g. wife’s
brother may marry husband’s sister)
Requirements for a civil marriage (cont.)
• Prohibited degrees of blood relationship:
• People may not marry anyone to whom they are related by blood in the direct
line
• It is never permissible for people to marry their parents, children, grandparents
or grandchildren
• People may marry their collateral blood relatives, if there are 4 or more degrees
of (separation) relationship between them
• Blood collaterals in the 2nd degree (siblings) may never marry
• Blood collaterals in the 3rd degree may never marry (e.g. an uncle may not marry
his niece or nephew)
• Blood collaterals in the 4th degree may marry, and so may anyone who is more
distantly related
• The rules also apply if the people involved are related by ‘half-blood’ (the relation
between persons having only one parent in common)
Requirements for a civil marriage (cont.)
• Prohibited degrees of relationship by marriage (affinity):
• People may not marry anyone to whom their spouse is related by blood in the
direct line
• This prohibition persists after the marriage has ended (either by divorce or death)
(e.g. even if D and G divorce, G cannot marry her former father-in-law (A), and D
cannot marry his former step-child (J))
• There are no prohibitions on marrying the collaterals of a former spouse (e.g. D
and G divorce, then G can marry any of D’s siblings or any other of D’s siblings (if
they are divorced or widowed themselves), or any of D’s other collateral relatives
• Also applies to sexual intercourse = People who have sexual intercourse with
their spouse’s relations in the direct line commit the crime of incest
• The Marriage Act of 1961 finally abolished all prohibitions on marrying collaterals
through relationship of affinity (e.g. D and G divorces, then G can marry any of
D’s siblings, or any of D’s other collateral relatives)
Requirements for a civil marriage (cont.)
• Adopted children:
• Children who are adopted may not marry anyone whom they would not have
been permitted to marry if they had not been adopted
• Therefore, adopted children may not marry their biological blood relatives within
the prohibited degrees
• An adoptive parent and an adopted child are not permitted to marry each other
• An adopted child may marry anyone in his or her adoptive family except the
adoptive parents
• Unless some other impediment exists e.g. if the adopted child is a blood relative
of someone in the adoptive family within the prohibited degrees of relationship
• The Children’s Act stipulates that an adopted child is regarded as the child of the
adoptive parents for ‘all purposes’
Requirements for a civil marriage (cont.)
• Opposite-sex and same-sex marriages:
• At common law, people could only marry each other if they were of opposite
sexes
• People of the same sex did not have the capacity to marry each other
• In Minister of Home Affairs v Fourie the Constitutional Court declared this
common law rule unconstitutional and instructed Parliament to change the law
so that same-sex couples could also conclude civil marriages
• Parliament responded by passing the Civil Union Act
• The Act complies with the instructions of the Constitutional Court and with the
requirements of the South African Constitution
• Now, both opposite-sex couples and same-sex couples can conclude civil
marriages
• However, Parliament did not amend the Marriage Act = Only opposite-sex
couples can marry in terms of the Marriage Act
Requirements for a civil marriage (cont.)
• Consensus: Voluntary informed consent:
• A civil marriage is a ‘voluntary union’ of two people
• People can marry each other if they give voluntary consent to the marriage
• The voluntary consent must also be informed consent (i.e. people must
understand the material aspects of the marriage and give consent to them)
• If the consensus requirement is not fulfilled = The marriage may be void (e.g. if
one of the parties lacked the capacity to give informed consent)
Requirements for a civil marriage (cont.)
• Or it will be voidable at the instance (request) of the wronged party (the innocent
party) (e.g. if one of the parties was forced/coerced into the marriage)
• People will not give voluntary informed consent if:
• 1. They are unable to give consent because they lack the capacity to do so
• 2. They were forced into the marriage through duress (force) or intimidation, or
• 3. Their consent was based on a material mistake (error)
Requirements for a civil marriage (cont.)
• Lack of capacity to give consent:
• People who are mentally ill or who are severely intoxicated are unable to give
valid consent to the marriage
• This is an aspect of their lack of capacity to marry
• Metus (duress or intimidation):
• There will be no voluntary consent to marriage if a party is forced into the
marriage through intimidation or duress
• E.g. physical violence, or the threat of physical violence, & other forms of
intimidation
Requirements for a civil marriage (cont.)
• The coerced party can have the marriage annulled if she or he can show that:
• 1. The fear was sufficiently serious to invalidate consent
• 2. The fear was reasonable, and
• 3. The fear arose from circumstances for which this party (the aggrieved party)
was not responsible
• Read reference to Smith v Smith (adjudged in 1948) on p. 243
• Was Mrs Smith’s fear ‘reasonable’ and ‘sufficiently serious’ to invalidate consent?
• Read p. 244
• The judge quoted Voet and Van der Linde
• The fear must be substantial
Johannes
van der Linde
Requirements for a civil marriage (cont.)
• Fear of hurting a parent’s feelings, or fear of being disinherited, will not suffice to
invalidate consent
• It is not necessary for the other spouse to have been involved in the threatening
conduct, or even to know about it
• The threat could come from strangers or be created by political conditions (e.g.
political refugees etc.)
Dionysius
van der Keessel
Gerhardus
Noodt
Requirements for a civil marriage (cont.)
• Material mistake (error) or fraud:
• A marriage will be voidable if one or both of the spouses made a material
(significant, important) mistake
• It is a requirement for a valid marriage that the spouses give voluntary consent to
(a) marry, and (b) to marry each other
• Mistakes on either of these issues are deemed material
• A mistake about the nature of the juristic act is an error in negotio (i.e. if one or
both of the spouses did not realise that he or she was concluding a marriage (but
instead e.g. a formal betrothal)
• Error in personam: No case law exists in South Africa where this has occurred, the
physical presence of both parties is required at the wedding
• Mistakes regarding the qualities of the spouse are not usually regarded as
material and thus they are not grounds on which a marriage can be annulled
Requirements for a civil marriage (cont.)
• Voet = A marriage cannot be set aside because of mistakes about ‘beauty, riches,
nobility etc.’
• A mistake concerning the other spouse’s ‘age, name, financial or social
circumstances, religion, race, nationality, previous marital status or prior sexual
experience’ does not render the marriage liable to annulment
• However, a marriage may be voidable if one of the spouses has misrepresented
certain facts that go to the heart of the marriage relationship
• E.g. wife concealed being pregnant by another man, or either of them knowingly
concealed the fact that they are sterile etc.
• Read obiter box on p. 245 Martins v Martins
Requirements for a civil marriage (cont.)
• The prescribed formalities:
• A marriage ‘must be undertaken in a public and formal way’
• It is a requirement for a valid civil marriage that the prescribed formalities are
followed
• Failure to adhere to some of the formalities may render the marriage void,
although other prescribed formalities are less important and non-compliance will
not effect the validity of the marriage
• The required formalities for a civil marriage in terms of the Marriage Act are set
out in that Act
• The required formalities for a civil marriage in terms of the Civil Union Act are set
out in that Act
• These formalities are almost identical
Requirements for a civil marriage (cont.)
• Marriage officers:
• A civil marriage must be solemnised by a duly appointed marriage officer
• The following people are marriage officers ex officio (by virtue of an office held)
in terms of the Marriage Act and the Civil Union Act
• - All magistrates and all special justices of the peace (in their districts)
• - The Minister of Home Affairs may designate other employees in the public
service or the diplomatic/consular service to be marriage officers
• - Ministers of religion and other religious officers may become marriage officers
• - The Minister of Home Affairs may designate such religious office bearers as
marriage officers for as long as they hold office
• E.g. Christian, Islam, Hindu, Judaic etc. religions (the Civil Union Act casts the
scope even wider to a wide variety of religious organisations e.g. Scientology,
Wiccans and other esoteric minority religious groups)
Requirements for a civil marriage (cont.)
• Objections:
• Both the Marriage Act and the Civil Union Act make provision for lodging of
objections to the marriage
• An objection to a civil union/partnership must be in writing (Civil Union Act)
• Any person who wishes to object to a proposed marriage must lodge the
objection with the marriage officer who will solemnise the marriage
• The marriage officer must investigate the matter
• If he or she is satisfied that there is no lawful impediment to the proposed
marriage, then she or he can proceed with the marriage
• If the marriage officer is not satisfied, he or she must refuse to solemnise the
solemnise the marriage
Requirements for a civil marriage (cont.)
• Proof of age and identity:
• No marriage officer may solemnise a civil marriage unless the parties in question
produce their identity documents or the prescribed affidavit (lying under oath =
perjury)
• The ‘marriage formula’:
• Couples can quote poetry, song lyrics etc.
• But a civil marriage will only be valid if the format of the wedding ceremony and
the vows exchanged have been approved by the Minister of Home Affairs
• This will be the case if the ceremony includes the ‘marriage formula’ as set out in
the Marriage Act or the Civil Union Act
• Couples marrying in terms of the Marriage Act may also use the formula
observed in terms of their religion if it has been approved by the Minister
• The crucial aspect of the marriage vows is that the couple must publicly agree to
be married to each other
Requirements for a civil marriage (cont.)
• The wording of the formula also makes it clear that both parties to the marriage must be
present when the vows are exchanged
• Parties must answer in the affirmative, otherwise the wedding cannot proceed
• See ‘marriage formula’ questions in terms of the Marriage Act on p. 247
• A failure to adhere strictly to the formally approved ‘marriage formula’ will not render
the marriage void, unless such failure was committed male fide (in bad faith)
• The ‘marriage formula’ is identically set out in the Civil Union Act, but the words
‘husband’ and ‘wife’ are replaced by ‘spouse’
• Witnesses:
• A civil marriage will only be valid if there are at least two competent witnesses present
at the solemnisation of the marriage (excluding the marriage officer) – Only for
marriages in terms of the Marriage Act
• This is an aspect of the public nature of marriage, and prevents clandestine (hidden)
marriages
Requirements for a civil marriage (cont.)
• Place and time of the wedding:
• Both the Marriage Act and the Civil Union Act provide that a marriage must be
solemnised ‘in a public office or private dwelling-house, with open doors
• Marriage Act – Marriage may be solemnised in a church or other religious
building
• Civil Union Act – ‘Premises used for such purposes by the marriage officer’
• Some other place may also be used, e.g. in the case of a person having suffered
serious bodily injury or illness etc.
• See ‘Using Law’ box on p. 248 – Ex parte Dow = The court decided that the
primary purpose of Section 29(2) of the Marriage Act was to prevent clandestine
marriages
• This purpose was not defeated by marrying in the garden, rather than in a house
• The Acts use the word ‘shall’ – This is peremptory (insistent, final) – But Ex parte
Dow brought more legal clarity – I.e. the marriage will not necessarily be void
Requirements for a civil marriage (cont.)
• Marriage officers may solemnise a marriage at any time, on any day of the week,
but are not obliged to solemnise a marriage at any other time than between the
hours of eight in the morning and four in the afternoon
• Registration of the marriage:
• Civil marriages must be registered in the manner prescribed by the Marriage Act
or the Civil Union Act as applicable
• The essential elements of registration are that:
• 1. The marriage officer, the parties to the marriage, and 2 competent witnesses
must sign the marriage register, or other prescribed documents, and
• 2. That the marriage register or documents are forwarded to the public official
responsible for the population register
• END