Chapter 5

Requirements for civil marriage

1. What is a civil marriage?
• This is a marriage in terms of the Marriage Act or the Civil Union Act
• These marriages are now permitted between same-sex couples
o The legally recognised voluntary union for life of two people to the exclusion of all
others
• Civil marriages can be distinguished from customary law marriages and religious
marriages

2. Requirements for civil marriage

• There are 3 requirements:
o Capacity
§ The parties must have the capacity to marry each other
o Consensus
§ The parties must consent to marry each other
o Formalities
§ The wedding must conform to the prescribed formalities
3. Capacity
• They must have the capacity to marry each other
o Each spouse must have the absolute capacity to marry
§ If they don’t have the absolute capacity, the purported marriage is void
o The spouses must have the relative capacity to marry each other
§ They may have absolute capacity to marry but they might be unable to
marry each other, the purported marriage will be void

3.1. Capacity to marry (absolute capacity)

• Marriage is an NB juristic act
• A marriage will only be valid if the person purporting to marry is able to give a valid
expression of will and is able to understand the legal nature and consequences of his or
her acts
• Absolute capacity to marry may be restricted by the following
3.1.1. Mental illness
• This is when people are unable to understand the legal nature and consequences
of their acts or if they are motivated to perform the acts by delusions caused by
mental illness
• They have no capacity to perform juristic acts of any kind and thus have no
capacity to marry
• If a person purports to marry while mentally ill
o The marriage is void and has no legal effect
3.1.2. Age
• Children below the age of puberty
o Have no capacity to marry
o Girls = 12
 o Boys = 14
o These marriages are void and have no legal effect
• Minors over the age of puberty may conclude a civil marriage in terms of the
Marriage Act if they have the permission of their guardians
• Boys and Girls under the age of 15
o Require the consent the Minister of Home Affairs
• Minors cannot conclude a civil marriage in terms of the Civil Union Act
3.1.3. Other factors
• Declaration as a prodigal has no effect on the declared prodigal’s capacity to marry
• People also have capacity to marry if they are insolvent or f a curator has been
appointed for reasons of physical incapacity
• People who are severally intoxicated that they are unable to understand the legal
nature or consequences of their acts, have no capacity to act and therefore have
no capacity to marry
o Not possible to get mindlessly drunk and wake up married as in movies
o The onus will be on the party alleging incapacity to prove it
3.1.4. People who are already married to someone else
• Civil marriage is a monogamous union of two people
• A person may not conclude a civil marriage if they are already civilly married to
somebody else or are married to someone else in terms of customary law
• Spouses in a monogamous customary law marriage, may conclude a civil marriage
with their customary law spouse
o Customary marriage becomes civil marriage then
o But they may not conclude a civil marriage with anyone else
• If a person purports to conclude a civil marriage while still married to someone else
o The marriage is void and no legal effect
o Civil marriage to more than one person at a time is illegal and constitutes the
crime of bigamy

3.2. Capacity to marry each other (relative capacity)

• In south Africa the only legal impediment preventing people with capacity to marry
from marrying each other is that they are related to each other within the prohibited
degrees of relationship
3.2.1. Prohibited degrees of relationship: people who are too closely related to each
other
• People who are too closely related to each other may not marry each other
o Blood relationships (relationships of consanguinity)
o Relationships created by marriage (relationships of affinity)
o The law also distinguishes between direct lines of descent and people who
are collaterals
o Diagrams pg 236-237
o Prohibited degrees of blood relationship (Consanguinity)
§ May not marry someone they are related to by blood in your direct
line
§ Cant marry your children, parents , grandparents or grandchildren
§ People may marry their collateral blood relatives
 • There must be four or more degrees o relationship between
them
§ Blood collaterals in the second degree
• (siblings may never marry)
§ Blood collaterals in the third degree may never marry
• Uncle may not marry his niece or nephew
§ Blood collaterals in the fourth degree
• First cousins may marry
• So may anyone who is more distantly related
• This applies to half-blood family as well
o Prohibited by degrees of relationship by marriage (affinity)
§ People may not marry anyone whom their spouse is related to by
blood by the direct line
§ This prohibition persists after the marriage has ended whether by
divorce or death
§ There is no prohibition on marrying the collaterals of a former spouse
§ Adopted children
• Children who are adopted may not marry anyone whom they
would not have been permitted to marry if they had not been
adopted
• Adopted children may not marry their biological blood relatives
within the prohibited degrees
• Ad adoptive parent and an adopted child are not permitted to
marry each other
• An adoptive child may marry anyone in their adoptive family
from the adoptive parents

3.2.2. Opposite – sex and same sex marriage

• Fourie case
o The law was changed and same-sex couples could also conclude civil
marriages
o Civil union act was passed
o The marriage act was not amended so only opposite sex couples can
marry in terms of the marriage act

4. Consensus: voluntary informed consent

• Civil marriage is a voluntary union of two people
• People need to give voluntary consent to the marriage if they want to get married
• Voluntary consent must be informed consent
• If the consensus requirement is not fulfilled then the marriage may be void or it
will be voidable at the instance of the wronged party
• People will not give voluntary informed consent if:
o They are unable to give consent because they lack capacity to do so
o They were forced into the marriage through duress or intimidation
o Their consent was based on a material mistake

4.1. Lack of capacity to give consent

 • People who are mentally ill or who are severely intoxicated are unable to give valid
consent to the marriage

4.2. Metus (duress or intimidation)

• No voluntary consent to marriage if a party is forced into the marriage through
intimidation or duress
o This may be physical violence or threat of physical violence as well as other
forms of intimidation
o The coerced party can have the marriage annulled if he or she can show that:
§ The fear was sufficiently serious to invalidate consent
§ The fear was reasonable
§ The fear arose from circumstances for which this party was not
responsible
• What is meant by sufficiently serious or reasonable fear?
o Assault, bullying, threatening
o Dazed and worried ad dazed mood
o Fear must be so serious that it affects the mind of a man of courage and
resolution
o Takes into account the age, sex and circumstances of the person alleged to have
been intimidated
o Marriage in these cases will be declared voidable on the grounds of duress

4.3. Material mistake or fraud

• Marriage is voidable if one or both of the spouses made a material mistake
• it must be a mistake o the issue of voluntary consent to marry and to marry each other
• a mistake about the nature of the juristic act is an error in negotio
o occurs if one or both spouses did not realise that he or she was concluding a
marriage
• a mistake as to the identity of the other party to the marriage is an error in personam
o physical presence of both parties must be required at the wedding
o no south African case for this
o a marriage cannot be set aside because of mistakes of beauty, riches, nobility
and other things like this
o what does not render a marriage liable for annulment?
§ Age, name, financial or social circumstances, religion, race, nationality,
previous marital status or prior sexual experience
o A marriage can be set aside by a husband if his wife is pregnant with another
man’s child and she concealed this.
o A marriage can be set aside if the partner is sterile

5. The prescribed formalities

• It is a requirement for a valid civil marriage that the prescribed formalities are followed
• Failure to adhere to the formalities does not always render marriage void

5.1. Marriage officers

• A civil marriage must be solemnised by a duly appointed marriage officer
• The following people are marriage officers ex officio:
o All magistrates
o All special justices of the peace
o Minister of Home Affairs can designate other employees in the public service or
diplomatic or consular services to be marriage officers, either generally or for any
specified class or persons or country or area
o Ministers of religion and other officials in religious organisations may also
become marriage officers
5.2. Objections
• Any person who wishes to object to a proposed marriage must lodge the objection with
the marriage officer who will solemnise the marriage
o Marriage officer to the investigate the matter

5.3. Proof of age and identity

• No marriage officer may solemnise a civil marriage unless the parties in question
produce identity documents or the prescribed affidavit

5.4. The marriage formula

• A civil marriage will only be valid if the format of the wedding ceremony includes the
‘marriage formula’ as set out in the Acts discussed
• Couples must publicly agree to marriage each other in terms of vows

5.5. Witnesses
• A civil marriage will only be valid if there are at least two competent witnesses present
at the solemnisation of the marriage
• This is an aspect of the public nature of marriage and prevents clandestine marriages

5.6. Place and time of the wedding

• Marriage must be solemnised in a public office or private dwelling house with open
doors
• Must be solemnised in a church or building used for religious service
• Premises used for such purposes by the marriage officer – civil union
• Marriage officers may solemnise a marriage at any time on any day of the week but
are not obliged to solemnised a marriage at any time than between the hours of 8am
and 4pm

5.7. Registration of the marriage

• Civil marriages must be registered in the manner prescribed in either act
• Essential element of registration
o Marriage officer, the parties to the marriage and two competent witnesses sign
the marriage register or other prescribed documents and the marriage register or
documents are forwarded to the public official responsible for the population
register