Chapter 1 - The legal requirements for a civil marriage

Question 1

4 requirements for civil marriage

Answer 1

1. The parties must have the capacity 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 parties must be lawful.
4. The prescribed formalities must be complied with.

Question 2

Capacity to act

Answer 2

Persons who have no capacity to act such as the mentally ill and infantes are totally incapable of entering into a civil marriage.

Question 3

Mentally ill persons

Answer 3

can only enter into a civil marriage during a lucidum intervallum.

Question 4

Declared prodigals

Answer 4

can enter into a civil marriage without the curator’s consent.

Question 5

Persons under curatorship due to a disability or illness

Answer 5

can enter into a civil marriage without the curator’s consent

Question 6

Minors

Answer 6

can only enter into a civil marriage with the consent of their parents/legal guardians

Question 7

Agreement

Answer 7

Both parties must intend to enter into a civil marriage with one another.

Question 8

Mistake

Answer 8

Mistakes concerning the identity of the other party (error in personam) or a mistake concerning the nature of the juristic act (error in negotio) are the only forms of material mistake in respect of a civil marriage

Question 9

Misrepresentation

Answer 9

Where one of the parties misleads the other prior to the civil marriage by making untruthful statements, or gives a false impression to the other party by concealing information which should be made known and thereby persuades the other to enter into marriage.

Question 10

Duress (coercion)

Answer 10

Where one of the spouses has been forced to consent to the civil marriage.

Question 11

Undue influence

Answer 11

Where 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.

Question 12

Lawfulness

Answer 12

A civil marriage is unlawful due to the following:

1. An existing civil or customary marriage or civil union
2. Persons who are of the same sex
3. Civil marriage between adoptive parents and their adopted parents
4. Persons who are within the prohibited degrees of relationship
5. Legal guardians and their wards

Question 13

Consanguinity

Answer 13

Blood relation

Question 14

Affinity

Answer 14

Relation by marriage

Question 15

Direct line (Consanguinity)

Answer 15

1. Parents (Mama & Papa)
2. Children

Question 16

Collateral line (Consanguinity)

Answer 16

1. Brothers
2. Sisters (Tumi & Tso)
3. Nephews (Junior, Banele)
4. Nieces (Lethabo)
5. Cousins (Brian, Tebogo, Fifi, Gugu)

Question 17

Direct line (Affinity)

Answer 17

1. Parents-in-law (Mamazala)
2. Spouse’s children from a former marriage i.e stepchildren)

Question 18

Collateral line (Affinity)

Answer 18

1. Sister-in-law (Neo)
2. Brother-in-law (Thuto)

Question 19

The prescribed formalities

Answer 19

1. Marriage officers
2. Formalities preceding the marriage ceremony
3. Formalities during the marriage ceremony

Question 20

Marriage officer

Answer 20

A civil marriage may only be solemnised by a marriage officer who is a :

1. magistrate
2. special justices of the peace
3. commissioners
4. persons appointed by the Minister of Home Affairs such as any officer in the public, diplomatic or consular service, and a minister of religion or anyone holding a responsible position in a religious denomination or organisation.

Question 21

Formalities preceding the marriage ceremony

Answer 21

Anyone who wishes to raise an objection to an intended civil marriage must lodge the objection with the marriages officer who is to solemnise the marriage. A marriage officer may not solemnise a civil marriage unless each party furnishes his or her identity or the prescribed affidavit.

Question 22

Formalities during the marriage ceremony

Answer 22

1. The Marriage Act requires that both parties must be personally present at the solemnisation of their civil marriage. Thus, no one can conclude a valid civil marriage through a representative (that is, by proxy)
2. A civil marriage may be solemnised at any time and on any day of the week, but a marriage officer is not obliged to solemnise a civil marriage at any time other than between 08:00 and 16:00
3. The marriage must be solemnised in a church or other building used for religious services or in a public office dwelling house with open doors and in the presence of the parties themselves, and at least two competent witnesses.

Question 23

Registration of civil marriage

Answer 23

The marriage officer who solemnises a civil marriage, the parties thereto, and two competent witnesses must sign the marriage register immediately after the wedding.