PVL2601 FAMILY LAW STUDY NOTES.

STUDY UNIT 1 THE LEGAL REQUIREMENTS FOR A CIVIL MARRIAGE 1. The parties must have capacity to act 2. There must be an agreement between the parties to enter into a civil marriage 3. The marriage between the parties must be lawful 4. The prescribed formalities must be complied with THE LEGAL REQUIREMENTS FOR A CIVIL MARRIAGE: CAPACITY TO ACT CAPACITY TO ACT EFFECT ON ABILITY TO ENTER INTO A CIVIL MARRIAGE Declared prodigals Can enter into a civil marriage without curator’s consent Mentally ill persons Can only enter into a civil marriage during a lucid interval (lucidum intervallum) Persons under curatorship due to disability or chronic illness Can enter into a civil marriage without curator’s consent Minors Can only enter into a civil marriage with the consent of their guardians/parents or the presiding officer of the Children’s Court) PVL2601 FAMILY LAW STUDY NOTES. THE LEGAL REQUIREMENTS FOR A CIVIL MARRIAGE: AGREEMENTS FACTORS WHICH CAN HAVE AN EFFECT ON CONCENSUS (AGREEMENT) MISTAKE MISREPRESENTATION DURESS UNDUE INFLUENCE Only forms of material mistake in civil marriage: 1. Mistake concerning the identity of the party (error in personam) 2. Mistake concerning the nature of the juristic act (error in negotio) Only material mistakes mentioned above exclude agreement Where one of the parties misleads the other prior to the civil marriage by making untruthful statements, or gives a false impression to the other party by concealing information which should have been made known Only a serious misrepresentation excludes agreement (like when a woman is already pregnant with another man’s child but doesn’t say so) Where one of the spouses has been forced to consent to the civil marriage (eg Smith v Smith) Where one of the parties of civil marriage has been influenced in his or her decision and has been persuaded to enter into the marriage as a result of this influence EFFECT ON VALIDITY MISTAKE MISREPRESENTATION DURESS UNDUE INFLUENCE Unclear whether void or voidable Voidable Voidable Voidable Heaton and Kruger feels that it is technically void, but in the interests of society should only be voidable Only a serious misrepresentation can lead to a civil marriage being set aside Smith v Smith No direct authority Ought to have an effect on the validity of civil marriage UNLAWFULNESS: WHEN IS A CIVIL MARRIAGE BETWEEN PARTIES ILLEGAL RELATIONSHIP CONSANGUINITY AFFINITY (blood relationship) (relationship by marriage) DIRECT LINE COLLATERAL LINE DIRECT LINE COLLATERAL LINE (your parents (your brothers, sisters, (your parents in-law (your sister and your children) nephews, nieces, cousins) or your spouse’s in-law and children from a brother in-law) previous marriage) BLOOD RELATIVES IN THE DIRECT LINE MAY NOT MARRY (PARENTS AND CHILDREN) BLOOD RELATIVES IN THE COLLATERAL LINE MAY NOT MARRY IF EITHER OF THEM IS RELATED TO THEIR COMMON ANCERSTOR(S) WITHIN THE FIRST DEGREE OR GENERATION PERSONS RELATED TO EACH OTHER BY AFFINITY IN THE DIRECT LINE MAY NOT MARRY (PARENTS-INLAW, YOUR SPOUSE’S CHILDREN FROM A PREVIOUS MARRIAGE) PERSONS RELATED TO EACH OTHER BY AFFINITY IN THE COLLATERAL LINE ARE ALLOWED TO MARRY (SISTER/BROTHER-IN-LAW) STUDY UNIT TWO VOID, VOIDABLE AND PUTATIVE MARRIAGE VOID CIVIL MARRIAGES THE GROUNDS OF NULLITY (i) Non-compliance with the formal requirements for civil marriage (ii) Non-compliance with the material requirements for civil marriage THE CONSEQUENCES OF A VOID CIVIL MARRIAGE  A void marriage doesn’t affect the status of the parties as a void marriage doesn’t confer any of the consequences of marriage on the parties or their children  No matrimonial property system is operative between the parties  There is no reciprocal duty of support between the parties  The parties may not inherit intestate from each other  The parties’ children are children born of unmarried parents  Both parties are free to enter into another civil marriage, civil union or customary marriage