Chapter 2 - Void, voidable and putative civil marriages

Question 1

Void civil marriages

Answer 1

A void civil marriage is a civil marriage which has simply never come into existence. The position is exactly as it would have been had the marriage never been concluded.

Question 2

Consequences of a void marriage

Answer 2

1. A void marriage does not affect the status of the parties as a void marriage does not confer any of the consequences of marriage on the parties or their children.
2. No matrimonial property system is operative between the parties.
3. There is no reciprocal duty of support between the parties.
4. The parties may not inherit intestate from each other.
5. The parties’ children are children born of unmarried parents
6. Both parties are free to enter into another marriage, civil union or customary marriage.

Question 3

Examples of void marriages.

Answer 3

1. A man of 21 years of age concludes a marriage with an 11-year-old girl.
2. Digaan and Palesa’s marriage was solemnised by James, who is not a competent marriage officer
3. Dumisane, a competent marriage officer, solemnises the marriage of Xolani and Mathapelo. Dumisane, Xolani and Mathapeloare the only persons present at the solemnisation
4. Sizwe, whose wife is dying, concludes a marriage with Thandeka

Question 4

Voidable marriage

Answer 4

A voidable marriage is a marriage in which grounds are present, either before or at the time of the wedding, on the basis of which the court can be requested to set aside.

Question 5

Grounds for setting aside a voidable civil marriage

Answer 5

1 Minority
2. Material mistake
3. Duress
4 Undue influence
5. Stuprum
6. Impotence
7. Sterility

Question 6

Examples of voidable marriages.

Answer 6

1. At the time of Thabo and Jane’s marriage, Jane was pregnant with Vusi’s child. After the solemnisation of the marriage Thabo discovers her pregnancy.
2. At the time of the solemnisation of Tom and Mary’s marriage in the magistrate’s office, Tom had the intention of entering into a marriage with Mary, while Mary was of the opinion that the transaction was about the registration of an engagement.
3. Senzo and Salaminah, both 17 years of age, conclude a marriage against the wishes of their parents, and consequently without their parents’s consent
4. After entering into marriage with Donald, Thembi finds out that Donald is impotent and was already impotent before entering into a marriage.
5. James concluded a marriage with Mapaseka. At the time of entering into the marriage, Mapaseka was aware of the fact that she was sterile but concealed this out of fear that James would no longer want to marry her.

Question 7

Consequences of a voidable marriage

Answer 7

A voidable civil marriage remains in force and has all the normal legal consequences of a valid civil marriage until set aside by a court order. If a voidable marriage is not set aside, it remains in force. Therefore the court order setting the marriage aside is essential, and not merely a declaratory.

Question 8

Putative marriage

Answer 8

A putative marriage exists when one of the parties (or both of them) enters into a civil marriage while being unaware that there is a defect which renders the marriage void.

Question 9

Requirements of putative marriages

Answer 9

1. One of the parties or both of them must be unaware of the defect which renders their civil marriage void.
2. Due solemnisation

Question 10

The consequences of a putative marriage

Answer 10

1. Although a putative marriage is void, it has some of the legal consequences of a valid marriage.
2. Children born of a putative marriage are regarded as children born of married parents.
3. If both parties were bona fide at the time of entering into a putative marriage and the marriage was concluded without an ANC, the parties are treated as having established a joint estate by virtue of having been married in community of property.