PVL2601 SUMMARY NOTES.

Study Unit 1 - The legal requirements for a civil marriage A civil marriage is a voluntary union based on consensus , therefore is often considered or called a contract. The requirements for a civil marriage are:  The parties must have capacity to act.  There must be agreement between the parties to enter into a civil marriage with each other.  The marriage between the parties must be lawful.  The prescribed formalities must be complied with. 1.1Capacity to Act Some persons have no capacity to act, while others only have limited capacity to act. Because a civil marriage is bases on agreement , the parties must have capacity to act in order to be able to enter into a valid civil marriage. Persons who have no capacity to act such as mentally ill and infants (person below the age of 7 ) , are totally incapable of entering into a civil marriage. Others like minors who are over the age of puberty ( 12 for girls and 14 for boys), need to consent to supplement their limited capacity to act. 1.1.1 Declared Prodigals A declared prodigal refers to someone who is under curatorship because their mental or physical inability has rendered the person incapable of managing his or her own affairs. Modern South African writers unanimously adopt the view that the prodigal may enter into a civil marriage without the curator’s consent however it is still unclear which matrimonial property system operates in such a marriage . 1.1.2 Mentally ill persons If a person is de fact (in fact) mentally ill at the moment they enter in a civil marriage , the marriage is considered void as a result of the persons incapacity to act. For the purposes of concluding a civil marriage , a person is regarded as mentally ill and consequently lacking the necessary capacity to act , not only when he or she apparently does not understands the nature and consequences of the juristic ac , but also when he or she apparently understands the nature and consequences of the juristic act but hallucinations caused by a mental illness prompt him or her to enter into the marriage , thus negating the persons understanding. If a person who has been declared mentally ill is of sound mind at a particular moment (able to understand the nature and consequences of the act and able to make rational decisions ) that person is considered to have full capacity to act. A marriage which is concluded during a lucidum intervallum – clear moment , is valid. PVL2601 SUMMARY NOTES. A curator may not consent to a civil marriage on behalf of a mentally ill person. 1.1.3 Minors Minors between the between the age 7 to 18 years old have limited capacity to act and c annot conclude valid juristic act by which they could incur obligations unless they have consent of parents of legal guardian – applies to civil marriages. 1.2 Agreement At the moment of concluding a civil marriage , both parties must have the intention to enter into a civil marriage with one another. Problem in connection with agreement arise when both parties declare their agreement at the wedding but its subsequently transpires that genuine agreement was absent or that there was defect regarding the agreement, such as , because the parties laboured under a material mistake or one of them agreed because of a misrepresentation , duress or undue influence. 1.2.1 Mistake Only a material mistake excludes agreement. The only forms recognised as a material mistake in a civil marriage are ; Error in persona – mistake concerning the identity of the other party Error in negotio – mistake concerning the nature of the juristic act 1.2.2 Misrepresentation If one of the parties misleads the other prior to the civil marriage by making false statements or creating a false impression by concealing informant which should have been divulged, the marriage is voidable if the misrepresentation was material. Misrepresentation concerning very few matters is regarded as sufficiently serious. Prenuptial stuprum is one of these. A husband can have the civil marriage set aside if he can prove that is at the time of the wedding his wife concealed the fact that she was pregnant by another man and that he had been unaware of this state of affairs. The only other instance in which the a misrepresentation might possibly result in the civil marriage being voidable is the concealment by one of the parties that he or she is sterile or impotent. 1.2.3 Duress If one of the spouses was forced to consent to the civil marriage by duress the marriage is voidable. 1.2.4 Undue influence Although there is no direct authority for the premise that undue influence renders a civil marriage voidable , it is submitted that this should be the case. 1.3 Lawfulness A civil marriage between specific persons may , for a variety of reasons be unlawful. Generally , an unlawful marriage is void. 1.3.1 An existing civil or customary marriage or civil union Civil marriages are monogamous. Neither spouse may be a party to another civil/customary marriage or civil union when he or she enters into a civil marriage. A civil marriage concluded in violation of this prohibition is void and bigamous. However , the purported marriage may be putative if either or both spouses honestly believed the civil marriage was valid. 1.3.2 Persons who are of the same sex Although the Civil Union Act permits same-sex couples to enter into a civil union, civil marriages are reserved for people of the opposite sex. The rule of same sex couples not being allowed to enter into a civil marriage applies to homosexuals and transsexuals. 1.3.3 Adoptive parents and their adoptive children An adoptive parent may not marry their adoptive child. However, adopted children not related by either blood or affinity may legally enter not a civil marriage. 1.3.4 Persons who are within the prohibited degrees of relationship Our law prohibits a civil marriage between persons who are within certain degrees of relationship. Civil marriages which violate this prohibition are void. ‘’Consanguinity’’ Consanguinity refers to blood relationships – relationships which is created by birth between persons which have at least one common ancestor. Consanguinity may exist in either the ; Direct line – between ascendants and desecendents ( Father and daughter , grandmother and grandson) Collateral line – between blood relations who are not related to one another in the direct line but are related through a common ancestor (brother , sister , cousin , niece , uncle)