Formalities to enter into a Valid Marriage
The parties must have the necessary capacity to enter into a marriage or be properly assisted where assistance is required.
For marriages under the Marriage Act, 1961, the situation is as follows: minors under the age of puberty are not legally allowed to marry at all.
Minors, between the age of puberty and the age of majority2 require the consent of both parents or a guardian to marry.
Where the minor has only one parent living, only that parent’s consent is required. Where the minor has a guardian, the guardian’s consent is required.
Where the minor has no parents and no guardian, consent must be obtained from the Commissioner of Child Welfare/’ The commissioner will also be able to provide the necessary consent where a minor, for good reason, is unable to obtain consent, for instance where the parent is insane, cannot be found or unreasonably refuses to give consent.0 Additional consent is required from the Minister of Home Affairs where the male minor is under the age of 18 and the female under the age of 15.7
For marriages and civil partnerships under the Civil Union Act, 8 the age of consent is 18
4.1.2 Insane persons
At common law insane persons lack the capacity to enter into a valid marriage.1 Their lack of capacity extends to the capacity to enter into the juristic act of marriage where they are incapable of making any rational decisions with regard to the marriage contract, or incapable of understanding the nature of the juristic act and the obligations marriage creates.2 It is the lack of understanding that deprives a person of capacity, not the cause of the lack of understanding. The onus of proof will be on the person alleging the incapacity.3 Such a marriage will be a void marriage.4
1 Prinsloo’s Curators Bonis v Crafford and Prinsloo 1905 TS 669; Vemiaak v Veimaak 1929 OPD 13; Mitchell v Mitchell 1930 AD 217; Pienaar v Pienaar’s Curator 1930 OPD 171; Lange v Lange 1945 AD 332; Smith v Smith 1948 4 SA 61 (N); Uys v Uys 1953 2 SA 1 (E).
2 Pnnsloo’s Curators Bonis supra; Vermaak v Vermaak supra; Mitchell v Mitchell supra; Lange
V Lange supra; Uys v Uys supra; Jonathan v General Accident Insurance Co ofSA 1999 4 SA 618 (C) 627. J ~
3 There is a rebuttable presumption that a person is sane. Where a person has been
declared mentally ill the onus would be on that person to prove that his marriage was concluded during a lucidum intervallum. Cronje & Heaton South African Family Law 2'“' 2004 19. J
4 See par 5.
Both parties must have the intention to conclude a marriage as understood by the law. This is evidenced by their declarations to the marriage officer during the marriage ceremony. Consensus will be excluded by a material mistake as to the identity of the spouse or the nature of the juristic act; duress or undue influence; or prenuptial stuprum.
1 Marriage Act 25 of 1961 s 30.
2 Prenuptial stuprum refers, to the instance where a wife was pregnant with another man’s child when she got married, unbeknown to her husband. For an example of duress, see Smith v Smith 1948 4 SA 61 (N).
4.3.1 Bigamous marriages
Where a person marries whilst he or she is already validly married to some¬one else, the marriage will be bigamous, and therefore void.' The marriage will be void even though the bigamous party held an honest and reasonable belief that the first marriage had been lawfully terminated at the time of the second” marriage, or that the first spouse was dead. Bigamy is a criminal offence. This rule only applies to civil marriages and civil unions.2 Certain systems of customary law as well as religious laws, such as Islamic law, provide for a husband to have more than one wife.'1 hormonal treatment to enable him or her to function totally, to all outward appearances, as a member of his or her psychological sex. The Alteration of Sex Description and Sex Status Act2 makes provision for a person who has undergone such sexual realignment surgery to apply to the Director-General of Home Affairs for an alteration in the register of births.3 Once the register has been amended, the person is deemed for all purposes to be a member of his new gender.4
1 17 of 2006.
2 49 of 2003.
3 S 1(1). Medical evidence are required to accompany the application (s 1(2))
4 S 2(2).
4.3.3 Persons within the prohibited degrees of relationship
126.96.36.199 Relationship of consanguinity
The law prohibits marriage between certain blood relations, which is known as a relationship of consanguinity. A marriage between a person and his ot¬her ascendants or descendants (blood relations in the direct line such as a parent, grandparent, child, grandchild), are prohibited. Collateral blood relations are prohibited from marrying where one of the parties is within one degree of the common ancestor. A person may thus not marry a sibling, aunt or uncle, niece or nephew. Marriages within these prohibited degrees of relationship are not valid, and is in fact void.1 The prohibition on mar¬riage between persons related closely by blood is founded on both biological considerations and social and moral reasons and derives from Roman-Dutch law. The biological reasons are based on genetic factors: inherited disorders are more liable to arise within the same genetic pool. It is for this reason that an adopted child may not marry his or her natural relatives who fall within the prohibited degrees of relationship.3 An adopted child, unrelated to the adoptive parents, also may not marry his or her adoptive parents for social and moral reasons.4 The reasons of morality and social policy which forbid certain marriages relate closely to what is acceptable to public opinion.
1 Political Ordinance of 1580. See par 5.
2 Political Ordinance of 1 April 1580 (GPBI329); Van Zurck Codex Balavus sv Houwelyk XX; Grotius Inleiding 1 5 6; Van Leeuwen Cens for 1 1 13 13; Voet Commentarius 23 2 30, 23 2 29 FF; Van Der Linden Koopmans Handboek 13 6 1.
3 Child Care Act 74 of 1983 s 20(4).
4 Ibid. Ci Sv M1968 2 SA 617 (T).
188.8.131.52 Relationship of affinity
Theie is also a prohibition on marriage between certain persons who are related through marriage. This is known as a relationship of affinity. The historical basis of the prohibition stems from Canon law and the Roman- Dutch law that, by marriage, a relationship becomes equivalent to a relation¬ship by blood. A spouse was not permitted to marry the blood relations of his or her spouse if they were related within the prohibited degrees of con¬sanguinity. This prohibition is still based on the moral, social and religious belief that such a union is wrong. A spouse may not marry the blood rela¬tions in the direct line of his or her ex-spouse. For example, a husband may not marry the mother of his ex-wife. There is no longer a prohibition on a marriage between a person and his or her relations by affinity in the indirect (collateral) line.' A husband may thus marry the sister or aunt of his ex-wife and a wife may marry the brother or uncle of her ex-husband,
1 Marriage Act 25 of 1961 s 28.
Formalities for entering into a valid marriage
The formal requirements for entering into a valid marriage are contained in the Marriage Act (25 of 1961) and the Civil Union Act (17 of 2006)
The marriage must be solemnised by a duly appointed marriage officer.
Each party must produce an identity document or an affidavit in the prescribed form.
A minor must produce written consent of his or her parent(s) or guardian.
The marriage must be solemnised by the marriage officer according to the prescribed formula in the presence of the two parties to the marriage and in the presence of two witnesses.
All marriages must be registered.
If the prescribed formalities are not complied with, the marriage is a void marriage.