Chapter 3: Legal requirements

for a civil marriage

3.1 Introduction

Traditional definition:
o Civil marriage traditionally defined as the legally recognised lifelong, voluntarty union between one man and one woman to the
exclusion of all other persons
However, the modern version
o CM refers to the legally recognised voluntary union of one man and
one woman to the exclusion of all other persons
Civil marriage is voluntary union
o = based on consensus
Requires
o Capacity to Act
o Agreement/consensus
o Lawfulness
o Prescribed formalities

3.2 Capacity to act

3.2.1 General

Capacity to act is needed to enter into a valid marriage

No capacity to act?
o Mentally ill
o Infans (u7)
= INCAPABLE
Limited capacity?
o Minors

3.2.2 Declare prodigals

Unclear in law

Pienaar v Pienaars Curator

o
o
o
o

A declared prodigal may not enter into a civil marriage without

obtaining curators consent
If they marry without curators consent the marriage is out
community of property
If entered ito in community of propertycan void that arrangement
Marriage may not be in community of property if not in prodigals
interest

3.2.3 Mentally Ill

If a person is de facto (it is a fact) mentally ill at moment enter the CM

o Marriage is void.
o They have no capacity to act
If regarded as mentally ill and lacking capacity to act

Doesnt understand the nature and consequences of the juristic act

= void
Vermark v Vermark
Uys v Uys
o If understand but hallucinations cause by mental illness prompt into
marriage = Void.
Lange v Lange
Declaring someone mentally doesnt affect capacity to act however
o If of sound mind at particular moment (can understand nature +
consequences)
o Considered to have full capacity
o If concluded during lucid interval
o = VALID
Prinsloos Curators v Crafford and Prinsloo
If someone declared mentally ill
o Burden upon him/her to prove is normal
If not declared mentally ill
o Person who alleges mentally illness bears burden of proving mental
illness
Prinsloos Curators
a curator may not consent to CM on behalf of mentally ill person
Lange v Lange
o

3.2.4 Persons under curatorship because they are incapable of

managing their own affairs
Pienaar v Pienaars Curator
o Someone who isnt mentally ill but is under curatorship because
unable to manage own affairs
Eg, chronic illness or disability
o Can conclude CM without the consent of curator
o IF they have capacity to act when marrying
Person who is de facto incapable of managing their own affair
o Capacity to enter CM determined by ordinary test of capacity to
marry
Whether person has mental ability to understand nature
+consequences
Able to make rational judgment concerning actions at time of
marriage

3.2.5 Minors
a) General

Minors: 7-18yrs
o Limited capacity to act
o Cannot conclude without consent of parents or legal guardians
S24(1) of Marriage Act
o Specifically provide that Marriage Officer (MO) may not solemnise
marriage unless consentwhich is legally required for the purpose
of contracting the marriage has been granted and furnished to him
in writing
o Oral consent?

Common law consent could be given orally

S27 of Marriage Act
o If MO reasonably suspects a prospective spouse is of an age that
he/she cant neter a CM
o May refuse to solemnize
o Unless furnished with consent or proof that consent is not needed
S12 of Marriage Act
o MO may not solemnise CM unless each party produces ID or
prescribed affidavit

b) Consent required for civil marriage of a minor

The parents:
o Married or divorced:
If parents are married alive = Both must consent
Unless court orders otherwise
Or if sole guardianship is vested in 1 of them
If divorced = Same applies afm.
o Unmarried parents:
Both have guardianship then both parents consent s needed
If mother has sole guardianship = only mothers is sufficient
If sole parent cannot give consentguardian can.
o Sole guardianship awarded to one parent:
Only their consent is required
o Shared guardianship:
Parent and another
Their consent must also be obtained
Ito s18(5) of Childrens Act
o Guardianship to extent of exclusion of minors parent:
Only guardian consent is necessary

The legal guardian:

o Parent who is sole guardian:
May appoint a fit + proper person in their will to act as child
legal guardian after parents death
o Without legal guardian & minor is orphaned:
The HC and Master of GC may appoint a legal guardian to
minor
o Permission needs to be obtained from legal guardian to enter into
CM
o Exception:
Legal guardian cannot consent to CM between themselves
and the minor
If they wish to marry they must obtain permission/consent
from HC
The Minister of Home Affairs:
o S26(1) of marriage act
Boy of 14-18 and girl of 12-15 may not marry without written
consent of Min of HA
The minister may only grant consent if they considers
marriage desirable

If obtained, all other legal requirements must be complied

with
Consent of the minors parent(s) or legal guardian
Ministers consent is not required if the court consented to the
marriage
Male minor, or girl below 15 enters CM:
Without minsters consent = null and void
Unless it is ratified by Minister
S26(2)
Minister may ratify the marriage if they consider it desirable
and in the interests f the parties
An no other awful impediment to the marriage
S26
No clear directive whether person below puberty may marry

The presiding officer of the Childrens Court:

o Where minors parents (one or both) or legal guardian is absent to
consent to the minors CM
Mentally ill or in another way incompetent
o Where minor cannot for any other good reason obtain consent
o The Childrens Court:
May grant consent by presiding officer
However may not grant consent if parents/legal guardian
withholds their consent
If wish to get consent by courtapproach HC ito s25(4) of
Marriage Act
o Deciding on granting consent:
PO must also decide whether in it in the miners interests to
enter into a Antenuptial contract
PO must assist minor in its execution
o PO of Childrens Court refuses to grant consent:
Approach HC ito s25(4) of Marriage Act

The High Court:

o If:
One or both parents;
The legal guardian;
Or the PO of the Childrens Court
= withhold consent
o The minor may
Approach High Court ito s25(4) however not directly,
A minor may not approach the HC ito s 25(4) unless have
already applied for consent to PO of the Childrens Court ito s
25(1)
i.e. cannot bypass the PO of the Childrens Court
o The court may:
Grant consent if it is of the opinion that the refusal by the
parent is without reason and contrary ti the minors interests
o S25(4)
Lays down two tests
1. Is the refusal of consent without adequate reason?

2. Is it contrary to the minors interests?

See: Allcock v Allcock
In B v B:
Judge held that these tests are complimentary and must not
be considered separately
Court must take all circumstances into account
Weigh the reasons for the parents refusal
With due allowance for the fact that parents are in a better
position than the court to make a decision of such a personal
nature
Unopposed?
Court will not inevitably override the parents refusal to grant
consent
See De Greef v De Greef
If court grants consent?
May also make an order regarding the matrimonial property
system which is to apply
And if need be it may order a curator to assist the minor in
the execution of an Antenuptial contract

c) When a minor requires no consent to enter a CM

A minor who has entered into a valid CM, Customary Marriage

o That has been dissolved by death or divorce
= may remarry without consent
o As he/she obtained majority upon entry of 1st marriage
o Dissolution/divorce does not revive minority
The Civil Union Act restricts Civil Unions to adults only

d) Effect of absence of necessary consent

S26(2)
o Marriage entered into without Ministers consent when it was
required = null and void
o Unless, Minister ratifies (desirable, best interest, complies with all
other requirements)
S24A(1)
o CM of minor who fails to obtain consent necessary from parents,
legal guardian, or PO of Childrens Court
o = voidable
May be set aside bu the court on application by either
1. Minors parent(s) or legal guardian, before minr reaches
majority within SIX weeks from date they become aware if
existence of marriage
2. The minor, before he/she attains majority r within three
months thereafter
S24A(2)
o May not set aside the marriage unless it is satisfied that its
dissolution is in the minors best interests
o Factors presumed to be:
Same s25(4)
No compliance with time periods?

CM becomes unassailable and continues to exist until divorce or

death dissolves it
Patrimonial consequences?
o S24 of Matrimonial Property Act 88 of 1984
Governs the patrimonial consequences of CM a minor entered
into without consent
Distinguishes between
Marriages set aside
Marriages that are not set aside
Marriages set aside:
o S24(1) of MPA
Court may make an order regarding division of matrimonial
property of the spouses as it may deem just
No guidelines for this judicial discretion
Regard factors such as
Age
Financial circumstances
Wishes
If major took advantage of inexperience minor
Benefit at latters expense
Marriages not set aside:
o S24(2) MPA
If CM not dissolved
Same consequences as if the minor were of the age when the
marriage was entered into and any Antenuptial contract in
terms of which the accrual system s included and which has
been executed with a view to such a marriage, is deemed to
have been validly executed
o Two possibilities open to minor:
1. If the parties did not enter into an Antenuptial contract,
the primary matrimonial property system (community of
property) applies
2. If entered into Antenuptial contract which includes the
accrual system the contract is valid even though the
minor did not have the necessary consent to conclude the
contract
o S24(2) doesnt deal with Antenuptial contract in which the accrual
system is excluded
Academic debate
Such an Antenuptial contract must also be deemed to have
been validly executed
Others say it would render the second part of te section as
meaningless
They argue that s24(2) excludes Antenuptial contracts which
exclude accrual systems
Thus, this is still open to constitutional attack on the grounds
that it constitutes an unjustifiable denial of equality before
the law and equal protection + benefit it violates the
injunction that the childs best interests must be paramount
Marriages concluded without consent (by a minor) before the act
o

S24A of Marriage Act is more clear than the MPA but both are
somewhat unclear
Suggests that act applies regardless of when the marriage
was concluded
CM = voidable
Intention of legislature was to provide clarity around issues of
confusion ito minor with required consent
Give meaning to this intention
S24A of Marriage Act should be interpreted to apply to all CM
entered into by minors without consent

3.3. Agreement
3.3.1 General

Both parties must have the intention to enter into a civil marriage with one
another
During the wedding ceremony
o Marriage officer must expressly ask each party whether he/she
accepts the other as their spouse
o Parties must answer in the affirmative/positively i.e. I Do
Marriage may not be solemnize if either states in the negative
If either parties are a minor he/she must personally indicate their
agreement

3.3.2 Mistake

Only
o
o
Eg.
o

a material mistake excludes agreement

Identity of the other party = error in personam
Nature of the juristic act = error in negotio

One of the parties has the firm intention of entering into a CM while
the other is under the impression that they are registering an
engagement or entering into a customary marriage.
Absence of agreement and its effect?
o Agreement is a requirement for a valid marriage, absence thereof,
as a result of material mistake should result in nullity i.e. void
o However must regard interests of society and 3 rd parties
As went through a legal wedding ceremony
o Preferably should render the marriage voidable at the instance of
the mistaken party
Civil Marriage of convenience?
o Martens v Martens
Husband tried to annul the marriage as only entered to allow
wife to gain permanent residential status
Tried to claim that neither of the parties had had the intention
of entering into a valid civil marriage
Court said NO, mustve realised that they were entering a
valid marriage ad can only dissolve through divorce.
Name, surname and religion?
o Mistake about facts concerning the CM or personal attributes of the
other party

The mistake is NOT material unless the misunderstanding

was caused by a misrepresentation by the other party
If not material? Does not constitute the grounds for
dissolution of the CM
Surname: Ex Parte Boshoff
Religion: Rubens v Rubens, Leighton v Roos

o
o

3.3.3 Misrepresentation

One of the parties misleads the other prior to the CM by making false
statements/creating false impressions by concealing info which shouldve
been divulged
o CM = voidable
o ONLY if misrepresentation is of serious nature
Few issues result in CM being voidable
Prenuptial stuprum
o Husband can set aside a CM if he can prove ta at the time of the
wedding the wife concealed the fact she was pregnant by another
man
o And that he had been unaware of this
o See: Stander v Stander
Other issues?
o Impotent or sterile (concealed this fact)

3.3.4 Duress

If one of the spouses was forced to consent to the CM by duress

o CM = voidable
Smith v Smith
o Woman coerced to such extent by her father and prospective
husband that she was completely dazed and lacked any will of her
own during the wedding
o The court concluded that the duress rendered the marriage voidable
and therefore set it aside
It is immaterial whether the duress amounted from other spouse f a third
party

3.3.5 Undue influence

No direct authority
But submitted by textbook that CM should be voidable
o Preller v Jordaan
o Mauerberger v Mauerberger (LOLfest)
o Katzenellenbogen v Katzenellenbogen (oath I didnt just make this
up :/)

3.4 Lawfulness
3.4.1 General

Specific CM or CM between specific persons may be unlawful

o Rendering it void. (usually)

3.4.2 Existing Civil or Customary marriage, or civil union:

CM are monogamous

Neither prospective spouses may be party to another existing CM,

Cust Marriage or CU when entering into a Civil Marriage
Cm which is concluded in violation of this prohibition:
o Void and bigamous
o However, may be putative if either or both spouses honestly
believed the CM was valid
For example
o A 2nd CM would be putative if the married spouse believed in good
faith that he/she was legally divorced (while this was not the case)
o Or if the unmarried spouse was unaware of the other spouses
existing CM
o

3.4.3 Same-sex:

The Civil Union Act permits same-sex couples to enter into a CU, Civil
marriages are reserved for people of the opposite sex. See:
o WvW
o Simms v Simms
The rule that persons of the Same-sex (SS) may not enter into Cm with
each other affects both homosexuals and transsexuals
Transsexuals
o gender-dysmorphia syndrome
anatomically belongs in one body of either male/female but
psychologically identifies with the opposite gender
Alteration of Sex Description and Sex Status Act
o S2(1)
A person who has undergone sex reassignment surgery may
apply to the Director General of HA for alteration of their sex
description in the register of births
o S2(2)
This application, accompanied by reports by the medical
practitioners who performed the surgery/treatment or by
medical practitioner who has experience in this
surgery/treatment
o S3(2)
Once the persons sex description has been changed on the
register of births, he or she is deemed for all purposes to be a
member of his or her new sex
= the person may then marry someone of his or her former
sex

3.4.4 Adoptive parents and their adoptive children

Adoptive parent may not marry adopted child

o S242(2)(c) and (3) of the Childrens Act
Adoption however does not render a CM invalid if it otherwise wouldve
been valid
o If adoptive parent adopts two children, who are not related by blood
or affinity, could legally enter into a CM
Like wouldve been able to if were not adopted

Limitation only between parent child, no between adopted children (unless

related by blood or marriage)

3.4.5 Prohibited degrees of relationships:

Cm between persons within certain degrees of relationship are prohibited

CM which violate this prohibition = VOID
Consanguinity and affinity
o Terms, are vital.
Consanguinity:
o Refers to blood relationship
o Relationship created bu birth between persons who have at least
one common ancestor
o Un/married parents?
Doesnt matter whether this relationship arose out of either
o Consanguinity may exist either in
A. Direct line
B. Collateral line
o

Blood

relations in the direct line:

Between ascendants and descendants
Grandfather mother son granddaughter
No one can marry one another
Related in first degree marriage is prohibited
This marriage = forbidden
Not possible to have valid CM between direct line
consanguinity
Collateral blood relations:
Political Ordinance Articles 6 and regulate CM between
collateral blood relations
Prohibitions:
Brother + sister
Uncle + niece
Granduncle +grandniece
Allowed:
cousins
If one of the parties is related to common ancestor in 1 st
degree the marriage is prohibited
Thus one degree of consanguinity separates one
generation rom the generation immediately following it
Thus to calculate the degrees of blood relationship =
count the number of people within the exception of the
common ancestor
A
/ \
B
C
I
I
D
E
B and C cannot marry
B and E cannot marry
D and C cannot marry

D and E (cousins) = can.

Affinity
o Relationship which comes into being between a married person and
the blood relations of his/her spouse, as a result of the marriage
o In CM it is restricted to the blood relations of the other spouse
o No relationship by affinity exists between the lood relations of the
one spouse and the blood relations of the other spouse
A mans wifes sister (his sister-in-law) and his sons wife (his
daughter-in-law) are his relations by affinity, but are not of
relations by affinity of his brother
o Can exist in either
A. direct line
B. Collateral line
o

Direct line:
Affinity exists between a husband and his wifes blood
relations and vice versa.
Regulated by Article 8 of Political Ordinance
Persons related to one another by affinity in the direct line
may not enter a CM with each other
Man cannot enter into CM with his stepdaughter
Man cannot enter into Cm with his wifes: mother,
grandmother or granddaughter.
X and Y are married
X is related to = H, G, E and F by affinity (Direct line)
Y is related to = D, C, A and B by affinity (direct line)
Therefore, after dissolution of the CM between X and Y
X may not enter into a Civil Marriage with H, G, E amd
F
Y may not enter into Civil Marriage with D, C, A and B

Collateral line:
S28 of Marriage Act
There is no prohibition of Cm between a person and
his/her relations by affinity on the collateral line
E is the daughter of Y from previous CM and A is the son of X
from a previous CM
O is daughter and P is son from CM of X and Y
A and E are stepbrother and step sister
Not related to each other
May enter into Civil Marriage
However, A and P are related through the common ancestor
of X
Half-brother and half-sisterthus related
Not allowed to enter CM
Dissolution of Cm between X and Y?
X can enter into CM with relations of affinity in the
collateral line ,

but not with those by relation of affinity on the direct

line.
Same goes for Y.

Diagram explaining Direct and Collateral lines of affinity:

D
K
J=

I=I

C
X
A

Y
O

N
L

E
F

3.4.6 Legal guardians and their wards:

Legal guardian and minor ward need consent of the HC in order to enter a
valid CM
o Legal guardian cannot consent to the marriage on behalf of minor
S34 of Matrimonial Property Act inserted s24A into Marriage Act
o Regulates the validity of Cm concluded by a minor without the
consent of his/her parent(s) or legal guardian
o Does not however explain the effect of failure to obtain courts
consent to CM between legal guardian and minor ward
Argued that courts consent replaces that of parent/legal guarding
o The consequences of the courts absence is the same as those
which apply if the consent of parent(s)/legal guardian is not
obtained
Validity of marriage, in both cases is governed ito s24A of Marriage Act

3.4.7 Persons who belong to different race groups:

Race no longer constitutes an impediment to entering into a CM

3.5 The prescribed formalities

3.5.1 Marriage officers

Marriage Act set out the prescribed formalities for CM

Only solemnised by a marriage officer
o S11(1)
Anyone who purport to solemnize a CM without having the authority to o
so, and an authorised MO who solemnises a prohibited CM
o Guilty of offence ito s34A(1) and (3)
Prohibition does not apply to religious ceremony which does not purport to
effect a valid CM
o S11(3)

If MO solemnises a marriage ito Muslim or Hindu religious rites des

not commit an offence
Ex officio marriage officers
o by virtue of their office
magistrates
special justices of the peace
commissioners
o for the district or area in which they hold office
Minister of Home Affairs may also appoint other persons as MOs
o Public/diplomatic/consular services
o Minister of religion
o Responsible position in a religious denomination or organisation
= for purposes of solemnising marriages in accordance with
Christian, Jewish, Muslim and Indian religious rites
S3(1)
Those who hold MO position for religious office that they hold
o Retain authority for only as long as they remain ministers or occupy
their responsible positions
Refusals to solemnise?
o Any MO by virtue of religion or occupying position of responsibility
in religious denomination MAY refuse to solemnize a Cm which will
not be in accordance with the rites, formalities, tenets, doctrine or
discipline of his/her denomination/organisation
S31
MO outside borders of SA?
o May only solemnise a CM if both parties are South African and are
domiciled in SA
Not duly appointed MO
o Who act as though they have authority
o Minister of HA may in writing that the person shall be deemed to
have been a MO during such period, within such area or in respect
of the particular CM
Before issue this directive must be sure that the MO acted
in good faith
o Valid and binding if all other requirements for valid CM have been
met
o

3.5.2 Formalities preceding the marriage ceremony

Anyone who wants to raise objections

o Lodge with MO
o MO must inquire into the grounds n which objection is based
o May only solemnise the CM if satisfied that there is no lawful
impediment to it
Must furnish ID documents or prescribed affidavit
o May not solemnise if not produced

3.5.3 Formalities during the ceremony

Marriage Act requires

o Both parties to be personally present at the solemnisation
o Cannot conclude by proxy/representative
Time

o
o

Any time, any day of the week

But a MO is not obliged to solemnise any other time between 8am4pm

Where
o S29(2)
In a church or other building used for religious services or in a
public office or private dwelling house with open doors and in
the presence of the parties themselves, and at least two
competent witnesses
However the marriage may be solemnised somewhere else if
either of the parties cannot be present because of serious
illness or longstanding illness
o Ex Parte Dow
Held that non-compliance doesnt render the CM void
Husband applied for annulment of his CM in the ground that it
had been solemnised in the garden of a private dwelling
house and not in the house as required but h s29(2)
Judge examined the objects sought to be achieved by the
provision and the changes that occurred through the
centuries and concluded that the object of these provisions
had been to avoid clandestine marriages
A CM is an important relationship and the consequences of a
decree of nullity are so far-reachin that the legislator could
not have intended marriage to be void because of a two
letter owrd was not complied with
Application dismissed
The prescribed marriage formula
o 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 are all here present to witness that you take CD as you
lawful wedded wife/husband [spouse/partner]
o Must reply in the affirmative/positively
o Give each other their right hands and the MO then declares the
parties have been lawfully married
Error, omission or oversight of this?
Marriage is still valid
Registration of the marriage
o After solemnised marriage the parties and two witnesses must sign
the marriage register
The marriage officer shall forthwith transmit the marriage
register and records concerned
A copy of the entry in the register serves as prima facie proof
of its existence
o Non-fulfilment of the registration requirements does not affect the
validity of the CM and registration can be effected postnuptially