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Marriage - Part Two

This document outlines the legal framework regarding marriage, particularly focusing on minors and the capacity to consent. It discusses various aspects such as the implications of marriages lacking consent, the importance of consensus, and the consequences of misrepresentation and undue influence. Additionally, it covers formalities required for marriage, including registration and the prevention of secret marriages.

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tash.dorasamy1971
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5 views

Marriage - Part Two

This document outlines the legal framework regarding marriage, particularly focusing on minors and the capacity to consent. It discusses various aspects such as the implications of marriages lacking consent, the importance of consensus, and the consequences of misrepresentation and undue influence. Additionally, it covers formalities required for marriage, including registration and the prevention of secret marriages.

Uploaded by

tash.dorasamy1971
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 24

MARRIAGE

CHAPTER 3
MINORS

• Please ensure that you are aware of the rules relating to capacity of
the minor to enter into contracts.

• Section 24 of the Marriage Act deals with minors.

• See page 36.


SECTION 26

• See pg 38 TB.

• Prohibition of marriages under a certain age.

• Ministerial ratification is possible.

• See also the potential argument of discriminatory rules as far as


ministerial consent is concerned – pg 39.
INABILITY OF THE MINOR TO
OBTAIN CONSENT

• Pg 39

• No holder of parental rights - may apply to the Children’s Court.

• Minor unable to obtain consent for good reason – eg guardian


mentally ill etc.

• Refusal of consent by the Childrens court – HIGH COURT.


CASE LAW – PG 40

• ALLCOCK V ALCOCK

•BVB

• DE GREEF V DE GREEF
MARRIAGES LACKING CONSENT

• DEALT WITH BY SECTION 24(A) OF THE MARRIAGE ACT.

• Marriage is VOIDABLE.

• See PG 41.
PATRIMONIAL CONSEQUENCES
OF MARRIAGES W/O CONSENT

• SEE PG 41 & 42.

• DEALT WITH BY SECTION 24(1) OF THE MATRIMONIAL PROPERTY ACT.


CONSENSUS

• Please ensure that you are aware of the rules re consensus.

• PG 46

• Consensus is the basis of a valid marriage.


MISTAKE

• Renders a contract VOID if it is material.

• Error in persona – mistake re identity of the person.

• Error in negotio - mistake re the nature of the juristic act.


SIMULATED MARRIAGES

• See pg 47

• Martens v Martens

• Marriage valid as the intention to marry was present.

• Martens v Martens 1952 (3) SA 771 (W) (sham marriages and their consequences)
pp.776-777 para D- F.
MISREPRESENTATION

• Marriage is VOIDABLE if material.

• See pg 47.

• Stander v Stander
UNDUE INFLUENCE

• Voidable marriage.

• SMITH v SMITH
IMPOTENCE, STERILITY,
STRUPUM

a) IMPOTENCE – pg 49.

• See requiremnents.

b) STERILITY
• Van Niekerk : intention to have children.
• Venter : Fraudulent concealment – voidable
• Parties may enter into marriages with other aims intended.
CONTD

• Fourie : procreative potential is not a defining characteristic of a


marriage.
STRUPUM

• SEE PAGE 50

• Bride pregnant with the child of another man – husband unaware.

• Marriage is VOIDABLE.

• See pg 80 as to the reasons for VOIDABILITY.


FORMALITIES

See page 51 – 54

• Only competent marriage officers may conclude a marriage.

• See the various parties that are designated as such in terms of


sections 2 & 3 of the Marriage Act.
RELIGIOUS MARRIAGES

• May only solemnize marriages in accordance with the Christian,


Jewish, Muslim or other Indian faith.
PREREQUISITES

• Pg 51

• Provision of ID document / affidavit before solemnization.

• Reasons?

• Pg 51.
FORMALITIES

• PG 52 & 53.

• SECTION 29(2) – solemnized in a church OR other building used for


religious service or in a public or private dwelling with open doors.

• Parties and two competent witnesses.


PREVENTING SECRET
MARRIAGES

• Ex Parte Dow

• Aim of section 29(2) of the Act – preventing secret marriages.

• Court declined to declare the marriage Void.


SECTION 29(2)

1. Marriages took place in public.


2. Public was aware in the case an objection needed to be raised.
3. A register accessible to the public was available.

• Public should be allowed access.


Section 30(1) – Marriage Act

• Formula to be followed by the Marriage Officer to solemnize the


marriage.

• Read – pg 53.

• What happens if there is not strict compliance?

• Pg 53.
REGISTRATION

• Dealt with by section 29A of the Marriage Act.

• Marriage certificate is prima facie proof of the existence of the


marriage.
PUTATIVE MARRIAGES

• DISCUSSED PREVIOUSLY – SEE PG 56.

• See also the consequences : children and patrimonial consequences.

• Pg 56&57.

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