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Marriage - LU3

The document outlines the traditional definition of marriage under the Marriage Act of 1961, focusing on capacity, consensus, and compliance with formalities. It discusses absolute and relative impediments to marriage, including bigamy and mental incapacity, as well as the implications for transgender and intersex individuals. Additionally, it covers prohibited degrees of relationship, consanguinity, and affinity, detailing the rules governing marriage between related parties.

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tash.dorasamy1971
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6 views

Marriage - LU3

The document outlines the traditional definition of marriage under the Marriage Act of 1961, focusing on capacity, consensus, and compliance with formalities. It discusses absolute and relative impediments to marriage, including bigamy and mental incapacity, as well as the implications for transgender and intersex individuals. Additionally, it covers prohibited degrees of relationship, consanguinity, and affinity, detailing the rules governing marriage between related parties.

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
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LEARNING UNIT 3

MARRIAGE
TRADITIONAL DEFINITION IN TERMS OF THE
MARRIAGE ACT, 1961

• Capacity
• Consensus
• Compliance with the prescribed formalities.
CAPACITY

• Absolute impediment – lacking capacity to enter


into any marriage (mentally incapable)

• Relative impediment – Being unable to enter into a


SPECIFIC marriage.
ABSOLUTE

1. Already married – marriages in SA under the


common law are monogamous. More than one
marriage : bigamy which is a crime.
• genuine belief that previous marriage was dissolved
– putative marriage. Second marriage remains void.
• Not bigamy – intent is absent.
MENTALLY INCAPABLE

• May reach consensus in a lucid moment.

• Generally – void.

• Curator cannot give consent.


TRANSGENDER AND INTERSEX PEOPLE

• Sex in SA determined at birth.

• Gender is a social construct.

• Person who is born male but identifies as female –


transgender.
ALTERATION OF SEX DESCRIPTION ACT

• Not adequately implemented.

• See pause for refelction – pg 36.

• Kos v Minister of Home Affairs


CONTD

• Court in WJV’s application dissolved the marriage.

• Granted application for the alteration of the sex.

• Department’s failure – unlawful. Violation of the right to


dignity etc.
PROHIBITED DEGREES OF RELATIONSHIP

• Marriage between parties in the prohibited degrees


– VOID.
• May also be incestuous.
CONSANGUINITY (DIRECT)

• Blood relationships.

• Share a common ancestor.

• Direct line - ascendants / descendants eg : father/daughter


CONSANGUINITY ( DIRECT)

• Collateral line – share a common ancestor.

• Brother/sister ; cousins; uncle and niece.


AFFINITY

• Marriage realtionship.

• Direct line affinity - relationship between a person and the blood


relative of a spouse.

• Eg : mother-in law of the person


COLLATERAL AFFINITY

• Persons related by affinity in the collateral line to persons the spouse is


related to by blood in the collateral line.

• A spouse and his sister-in- law.


RULES RE CONSANGUINITY

1. Persons related by consanguinity in the direct


line -
PROHIBITED FROM BEING MARRIED.

***** - the number of generations between them is


not relevant!!!!!
CONSAIGUINITY – COLLATERAL LINE

• Complex.

• Whether a marriage is permitted depends on the


number of degrees that the parties are from the
common ancestor.
RULES

• If one or both the parties are within is/are within


one degree of the common ancestor –
marriage is not permitted.

• See pg 44.

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