Study Unit 3 Chapter 3 Marriage-1 PDF

Chapter 3 MARRIAGE Agenda Definition of marriage Requirements for a valid civil marriage:  Capacity  Consensus  Compliance with prescribed formalities Is marriage a contract? Voidable, void & putative marriages Recognition of foreign marriages. What is marriage (for the purpose...

Chapter 3 MARRIAGE Agenda Definition of marriage Requirements for a valid civil marriage:  Capacity  Consensus  Compliance with prescribed formalities Is marriage a contract? Voidable, void & putative marriages Recognition of foreign marriages. What is marriage (for the purposes of the law)? ‘the legally recognised life-long voluntary union between one man and one woman to the exclusion of all other persons’ Problems with definition: Life-long? Man and woman? To the exclusion of all other persons? Capacity to marry Parties must have the capacity to marry to conclude a valid marriage. Must be no impediments to the parties marrying each other. Must draw a distinction between absolute impediments to enter into any marriage AND relative impediments that prevent a person from entering into a specific marriage In essence: We distinguish between: Absolute incapacity to marry Relative incapacity to marry  Capacity No capacity – cannot marry – For example: mentally ill persons (Prinsloo’s Curator Bonis) Distinguish between absolute and relative impediments to entering into marriage: Examples of absolute impediments Examples of relative impediments Marital status (i.e.. one party is Gender (i.e. only persons of the already married) opposite gender are allowed to marry in terms of the Marriage Act) Mental incapacity Minority status (see following slides regarding the need for consent) Parties below the marriageable age Prohibited degrees of relationship Guardian and ward (need the permission of a court to marry) Persons under curatorship because of an inability to manage their affairs and declared prodigals Absolute incapacity to There are three situations where there is an marry absolute incapacity to marry: A. Where a party is already married B. Where a party is mentally incapable of understanding the nature of marriage as a juristic act (NB – lucid intervals C. Parties below the marriageable age  Common law: parties must have attained puberty (14 years for boys, 12 years for girls)  Is this differentiation constitutional? A. Marital status A marriage in terms of South African law is monogamous. Thus, a person may only be a spouse in one marriage under the Marriage Act, RCMA and Civil Unions Act. Only conclude a marriage if the existing marriage is dissolved through death, divorce or annulment.  Capacity to marry Consequences: Bigamy = void Unless, person genuinely believes his/her previous marriage has been dissolved = putative marriage Capacity to marry B. Mental incapacity Person who does not understand the nature of marriage as a juristic act due to mental incapacity cannot conclude a valid marriage. Why? Person is unable to reach consensus with the other party Curator cannot remedy However, may conclude a marriage if the health condition allows for lucid intervals  Capacity to marry C. Persons below the marriageable age Distinguish between situation under the common law and legislation namely, section 26(1) of the Marriage Act Common law = At the age of puberty. Thus, 14 years for boys and 12 years for girls Section 26(1): Boys under 18 and girls under 15 need written consent by the Min of Home Affairs to conclude a valid marriage. However – common law not replaced by section 26(1) Capacity: Minors Who is a minor? (17 of the Children’s Act (CA) = 18 years) A marriage between minors cannot be solemnised without consent. What consent is required?  The person who holds PR&R in respect of the minor (s18 of CA)  Confirmed in s24(1) of MA which requires written consent.  If there is no person who holds PR&R or if the parents/guardian cannot give consent? » The minor must apply to the children’s court for consent. Capacity: Minors What consent is required? (cont.) Where the person who holds PR&R refuses consent? o The minor must apply to the high court  NB: girl below 15/boy below 18 ALSO needs consent by Minister of Home Affairs (s26 of MA) Consent requirement in terms of the proposed Marriage Amendment Bill?  Same requirements re: holder of PR&R and children’s court  BUT NB: “Persons under the age of 15” need consent by Minister of Home Affairs (s19). Capacity to marry Relative incapacity to marry Various categories of relative incapacity to marry: A. Marriage, opposed to civil unions, between persons who are of the same sex (Gender) B. Person who are related to each other (Prohibited degrees of relationship) C. In some cases, persons without the consent of others (Minors) Relative incapacity to marry A. Gender Persons of the same sex are only allowed to marry or enter into a civil partnership ito the Civil Unions Act NOT allowed ito the Marriage Act (only applicable to heterosexual relationships) Sex change? Chromosomes did not change so remains the gender he/she was at birth (According to W v W in 1970) However, in 2003 the legislature stepped in to remedy the situation (Alteration of Sex Description and Sex Status Act) A person who has had alterations to his or her sexual characteristics recognised in terms of the Alteration of Sex Description and Sex Status Act may marry. Application to Min of Home Affairs Capacity to marry B. Minors Ito section 17 of the Children’s Act a minor is regarded a major on reaching the age of 18 Under puberty = no valid marriage (Common law position) But, for girls between 12 and 18 & guys between 14 and 18 they have limited capacity to act Valid marriage = consent Who? Holders of parental responsibilities Capacity to marry S 24 of the Marriage Act In the case of minors = Marriage officer must obtain legally required consent in writing Can refuse to solemnise marriage S 26(1) of the Marriage Act Boys under 18 and girls under 15 must obtain consent from the Min of Home Affairs together with that of those who hold parental responsibilities Ratification delegation  Capacity to marry What if minor: cannot obtain consent Applies to the Children’s court Only when legitimate excuse or the holder of the parental responsibilities and rights refuses? Approach the High Court for consent High Court is upper guardian Section 25(4) provide specific provisions regarding consent by the High Court – Minor has to prove: refusal is without sufficient reason and contrary to his interests Consent of High Court The court can only consent if: (a) Refusal of parent/guardian/children’s court is without adequate reason (b)Refusal is against the interests of the minor See p 40 for examples: Allcock v Allcock BVB De Greeff v De Greeff Validity of marriage without consent? Minister of Home Affairs – void Parent/guardian/children’s court – voidable Application for annulment may be made by:  Parent/guardian  Minor. Validity of marriage without consent? Consequences of a marriage in the absence of the required consent As a point of departure = Not void but voidable A competent court may dissolve the marriage: S 24 (2) of the Marriage Act – court may only allow the dissolution if its within the interest of the minor S 24 (1) Matrimonial Property Act – marriage set aside court has a wide discretion when deciding the patrimonial consequences of the marriage Section 24(2) of Matrimonial Property Act – marriage not set aside Patrimonial consequences of the marriage is the same as if the minor was of age when entering into marriage For example: no antenuptial contract (anc) = marriage automatically in community of property  Prohibited degrees of relationship Intermarriage is void and in some instances also constitute the crime of incest. Marriage within the prohibited degrees of relationship are prohibited and thus void Two types of relationship:  By blood (consanguinity)  By marriage (affinity) Consanguinity (blood relationship) is divided into the direct line (ascendants & descendants) and the collateral line (common ancestor) as illustrated on the next slide  Consanguinity (cont.) This means a blood relationship Blood relations are people who share a common ancestor (for example: same grandmother and grandfather) Two types: – Those relationships in a direct line where persons are the descendents of each other, for example father and daughter – Those relationships where persons are related by consanguinity in a collateral line. – These are persons that have a common ancestor. But are not related to one another in the direct line. For example: Brothers and sisters, cousins, nieces, uncles Consanguinity In the case of consanguinity in the collateral line, marriage is dependent on how many degrees the parties are away from the common ancestor. The rule is that if one or both of the parties is (are) within one degree of the common ancestor, then they are not allowed to marry. See textbook for example: page 44 Prohibited degrees of relationship (cont.) For example: Direct line Collateral line grandfather grandfather    mother B C    son D E    granddaughter F G  Affinity Affinity refers to relationships created through marriage Relations by marriage in the direct line (ascendi and descending) are prohibited from marrying each other Relations by marriage in the collateral line are allowed Direct to linemarry. (not Collateral line allowed) (allowed) M ABC  AB  N  Affinity A. The common law prohibitions in the direct line also apply to people related by affinity (husband and wife = 1) Relations in an ascending or descending line is prohibited This means that if the wife dies the husband is not allowed to marry his mother in law or the wife’s daughter from a previous relationship Affinity B. According to section 28, a husband may marry his deceased or divorced wife’s sister or any female related to him through his former wife in a more remote degree of affinity than the sister, for example, her sister’s daughter or aunt. C. there is no prohibition of marriage between blood relations of one spouse and the blood relations of the other. For example: A stepbrother may marry a stepsister For an example of affinity: see p. 44-45 Who is Andrew not permitted to marry? Jessica is Andrew’s mother. Claire is Jessica’s sister and Janis is Claire’s daughter. Bridget is Andrew’s ex-wife. Anne is Bridget’s daughter from her marriage to Tim. Shelly is Bridget’s sister. Relationship through adoption, guardiansh and ward and prodigals/persons under curatorship Adoption S 242(2)(c) Children’s Act: confirms the common law rule that the normal consequence of adoption is that all ties between child and his/her biological parents are severed  The legal relationship between the child and his/her adoptive parents replaces these ties NB: existing blood relations are still bound by the common law regarding consanguinity. Relationship through adoption, guardianship and ward and prodigals/persons under curatorship (cont.) Guardianship and ward Permission of court needed for marriage Persons under curatorship/prodigals Can enter marriage without the consent of their curator Different to those under curatorship due to mental illness In Pienaar v Pienaar – unable to manage his financial affairs  Adoption Ties between the child and his biological parents are severed. The legal relationship between the child or his/her adoptive parents replaces the ties with the biological parents. Thus = same rules of blood relations apply to adoptive parents and child. But the same rules of blood relations still apply to his biological family. Section 242 (2) (c) of the Children’s Act prohibits a mother from marrying her adopted son  Consensus Willingness to declare to enter into marriage with each other during a marriage ceremony The basis of all engagements & marriages Confirmation of consensus? = declaration made during a marriage ceremony in the presence of 2 witnesses and a marriage officer (s 30 of the Marriage Act) Examples where a lack of consensus may exist: 1. Material mistake  Error in persona - A mistake about the identity, unlikely to happen due to both having to present at marriage ceremony  Error in negotio - A mistake as to the Consensus (cont.) Lack of consensus? Normally where there is a material mistake present in the mind of either or both parties Material mistake could also be present in cases or duress, undue influence or misrepresentation Examples where a lack of consensus may exist (continued): 2. Misrepresentation (see Stander v Stander) 3. Duress (see Smith v Smith) & undue influence 4. Prenuptial stuprum 5. Impotence 6. Sterility (concealed fraudulently?) Consensus Material misrepresentation that renders the marriage voidable Not void! Prejudiced party may set marriage aside within a reasonable time Must relate to a material aspect of the marriage – In addition The deceived party must prove that he/she has been misled and would not have entered into the marriage Impotence Plaintiff (alleging that the marriage is voidable) must prove: Impotence existed (physical/psychological – Joshua) At the time of the marriage It is incurable The spouse claiming annulment was unaware of it at the time of the marriage (W v W) Impotence (cont.) The marriage is not voidable where: The spouse was aware/condoned the impotence It was reasonably foreseeable that sexual intercourse would not take place (because of age or sickness) A spouse becomes impotent after the marriage A spouse wilfully refuses to have sexual intercourse. Sterility Courts are not unanimous with regard to the question whether sterility renders a marriage voidable Van Niekerk v Van Niekerk Obiter remark: sterility would render the marriage voidable if the inability existed at the time of conclusion of the marriage and if the parties intended to have children Venter v Venter Only if fraudulently concealed, sterility may lead to the annulment of the marriage. Fourie v Min of Home Affairs procreativity is not a defining characteristic of conjugal relationships. In fact, the court held that the suggestion that gays and lesbians cannot procreate should be rejected Stuprum Definition and requirements: At the time of the marriage (see Stander) The wife is pregnant With another man’s child The husband is unaware of this Voidable if the husband was unaware According to Cronje & Heaton the real reason for voidability of a marriage is two fold: Fraudulently concealed Husband married to the mother is presumed to be the father i.t.o presumption of paternity– maintenance Stuprum (cont.) Possible reasons for the action? Jeopardises the prospects of a happy marriage Fraudulent concealment of the pregnancy (but…) Husband will be liable for maintenance under the presumption of paternity Action not available where: Husband condoned his partner’s actions He waived his right to ask for an annulment of the marriage. Prescribed Formalities (as set out in the Marriage Act) Marriage officers Magistrates, commissioners, special justices of the peace in the area where they hold office (ex officio) Other officials/employees in the South African civil/diplomatic/consular service (appointed) or those Designated as ex officio marriage officers by the Minister of Home Affairs Ministers of religion/persons holding responsible positions in a religion appointed by the Minister of Home Affairs (appointed) Marriage officers (cont.) Ministers of religion: Solemnise marriage in accordance with the Christian, Jewish, Muslim or Indian faith For as long as they remain within their religious organisation Minister of Home Affairs: If sufficient reason, may revoke person’s designation as a marriage officer (s 9) Marriage officers (cont.) Marriage officer abroad: Only competent where both parties are SA citizens and domiciled in SA (Santos) Where person not designated or competent to solemnise a marriage? Marriage is void NB: rebuttable presumption that formalities are complied with. Prerequisites for the conclusion of a marriage Formalities before ceremony Time of ceremony (s29(1)) Place of ceremony (s29(2)) – Ex parte Dow  Proposed amendment in terms of Bill: ‘…or in any place outside thereof. Provided that the parties themselves and at least two competent witnesses are present in such place.’ Persons who must be present (incl. parties) Marriage formula (s30(1)) (see next slide) Registration of marriage (see next slide)  Proposed amendment: ‘The marriage officer shall forthwith transmit the marriage register and records concerned…’ Marriage formula ‘Do you (AB) declare that as far as you know there is no lawful impediment to your proposed marriage with (CD) here present, and that you call all here present to witness that you take (CD) as your lawful wedded wife/husband? [spouse / civil partner] ’ …. ‘I declare that (AB) and (CD) here present have been lawfully joined in marriage’ Compare with additional formalities for Sectioncivil 8(6): partnerships A civil union may only be registered by prospective civil union partners who would, apart from the fact that they are of the same sex, not be prohibited by law from concluding a marriage under the Marriage Act or Customary Marriages Act Section 6: MOs cannot be compelled - provides for objection by marriage officers on the grounds of conscience, religion and belief, to solemnising a civil union between persons of the same sex Section 11(1): Inquiry = will the union be known as a marriage or civil partnership? Registration of the marriage S29A: Marriage certificate to be signed by: Marriage officer Parties concluding the marriage Witnesses Purpose of certificate: Prima facie proof of marriage  Void and voidable marriages Difference between void/voidable marriages and divorce? Difference between void & voidable marriages? NB: Putative marriages = species of void marriages Voidable marriages Elements of a voidable marriage: Validly came into existence. But… Deficiencies in existence at time of conclusion of marria Marriage valid until court orders otherwise Examples of deficiencies for setting aside a voidable marriage: Material misrepresentation or duress Impotence of spouse Fraudulent concealment (?) of sterility Prenuptial stuprum Absence of requirement consent in respect of a minor In customary law marriages:  Failure to make the required declaration (see chapter Void marriages (cont.) Where one of the formal or material requirements for the validity of a marriage is not satisfied Formal requirements:  Competent marriage officer  Lack of written consent by Minister of Home Affairs (where boy >18 & girl >15)*  No witnesses present Material requirements:  One party already married/in a civil union  Parties within the prohibited degrees of relationship  One or both parties below the marriageable age  One or both the parties were mentally ill. Consequences and exceptions Void marriage has NO consequences – does not affect status of parties *NB Statutory qualifications / exceptions where Minister may ratify in terms of:  Section 6 (marriage officer not competent)  Section 26(1) (minors under age of 18 (boys) / 15 (girls)). Comparison of consequences Void marriage has NO consequences – does not affect status of parties Voidable marriage: Valid marriage until decree of nullity obtained  Nullity is NOT akin to divorce, it cancels the marriage as a legal fact at the time of the conclusion of the marriage  Declaration = retrospective effect  BUT: Children born of the marriage? Position of 3rd parties?  Putative marriages It is a species of void marriages Purpose: alleviate the harsh consequences of a void marriage especially in relation to children Requirements: 1. One or both parties genuinely but mistakenly believed the marriage to be valid 2. Compliance with all formalities at the solemnisation of the marriage * This latter requirement is contested in case law: see the cases of Bam; Ngubane; Solomons.  Consequences of a putative marriage Status of children? Common law authors v Children’s Act Patrimonial consequences? Usual matrimonial consequences don’t follow Dependant on each party’s intention and bona fides Intention to marry in cop Intention to marry out of cop General rule: to the benefit of the innocent party Recognition of foreign marriages For a foreign marriage to be valid in South Africa: It must comply with formalities of jurisdiction where it was concluded It must not be in contravention of SA law It must not be against public policy.