PVL2601-FAMILY_LAW_COURSE_Notes Summary.

SECTION 2: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A CIVIL MARRIAGE “Marriage” is traditionally defined as the legally recognised life-long voluntary union between one man and one woman to the exclusion of all other persons. This relates only to civil marriages, since customary and Muslim marriages permit polygyny. Furthermore, with the enactment of the Civil Unions Act, a “civil union” is defined as the voluntary union of two persons who are both 18 years of age or older, which is solemnized and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others”. Marriage is not a contract. Because marriage is based on consensus, the parties must clearly have capacity to act in order to be able to enter into a valid marriage. Capacity to act Persons who have no capaciPVL2601-FAMILY_LAW_COURSE_NOTES_ to act, such as the mentally ill and of age), are totally incapable of entering into a marriage. Others, like minors who are over the infants (persons below 7 years age of puberty, need consent to supplement their limited capacity to act. (1) Declared prodigals The prodigal may marry without his or her curator’s consent. The weight of opinion favours the rule that the prodigal’s advantage determines whether the marriage is in or out of community of property, otherwise, the selection of the matrimonial property system would amount to an unauthorized disposition of the prodigal’s property. (2) Mentally ill persons If someone is de facto mentally ill at the moment he or she enters into a marriage, the marriage is void as a result of his or her incapacity to act. A person is regarded as mentally ill and consequently lacking the necessary capacity to act, not only when he or she does not understand the nature and consequences of the juristic act, but also when hallucinations caused by a mental illness prompt him or her to enter into the marriage. A marriage concluded during a lucidum intervallum is perfectly valid. The fact that someone has been certified mentally ill however places the burden on him or her to prove that he or she is actually normal, while in the absence of certification, it is the person who alleges mental illness who must prove the presence of mental illness. (3) Persons who have been placed under curatorship because they are incapable of managing their own affairs Competent to conclude a valid marriage without the consent of his or her curator. (4) Minors Minors between 7 and 21 have limited capacity to act and thus cannot conclude valid juristic acts by means of which they incur obligations unless they have parental consent. Parental consent is therefore required for a minor to enter into a valid marriage. Section 24(1) of the Marriage Act PVL2601-FAMILY_LAW_COURSE_Notes Summary. 2 provides that a marriage officer may not solemnize (conduct a marriage ceremony) a minor’s marriage, unless the consent which is legally required for the purpose of contracting the marriage has been granted and furnished to him in writing. Section 27 – if a marriage officer reasonably suspects that the age of a prospective spouse is such that he or she may not marry without having obtained some other person’s consent, the marriage officer may refuse to solemnize the marriage unless he or she is furnished with the required consent in writing. Section 12 – a marriage officer may not solemnize a marriage unless each of the parties either produces his or her identity document or furnishes the marriage officer with a prescribed affidavit. (a) consent required for the marriage of a minor (i) parents If both parents are alive, both must consent to the marriage of their legitimate minor child, unless the court orders otherwise or sole guardianship has been granted to one of them. If the minor was born out of wedlock, the mother’s consent is needed as she is the child’s guardian. (ii) legal guardian An orphan for whom a guardian has been appointed must obtain his or her guardian’s permission to marry. (iii) Minister of Home Affairs Section 26(1) of the Marriage Act - a boy below the age of 18 years and a girl below the age of 15 years may not marry without the written permission of the Minister of Home Affairs. Consent will only be granted if the marriage is deemed ‘desirable’. Even if the Minister’s consent is obtained, all the other legal requirements still have to be complied with, so the parents’ consent must also be obtained and the prescribed formalities for a marriage must be met. Ministerial consent is not required if the court has consented to the marriage. If a boy below the age of 18 years or a girl below the age of 15 years marries without ministerial consent, the marriage is null and void, but section 26(2) empowers the Minister to ratify the marriage if: 1. he or she considers the marriage desirable and in the interests of the parties 2. the marriage was in all other respects solemnized according to the Marriage Act’s provisions; 3. there is no other lawful impediment to the marriage. The Minister’s power only applies to marriages of girls between 12 and 15 years of age and boys between 14 and 18 years of age. (iv) Commissioner of child welfare Where either of the minor’s parents, or both of them, or his or her guardian is absent, mentally ill, or in any other way incompetent to consent to his or her marriage, or if the minor can for any other good reason not obtain the consent of his or her parents or guardian, consent may be granted by the commissioner of child welfare. The commissioner of child welfare must also determine whether it would be in the minor’s interests to enter into an antenuptial contract. If so, 3 the commissioner must assist the minor in the execution of the antenuptial contract and his or her assistance is deemed to be the assistance of the minor’s parent or guardian. If the commissioner refuses to consent to the marriage, the minor may approach the high court for consent in terms of section 25(4) of the Marriage Act. However, where application must be made to the commissioner of child welfare in terms of section 25(1), the minor may not bypass the provisions of the section by applying directly to the court. (v) high court Section 25(4) – if one or both parents, the legal guardian, or the commissioner of child welfare withholds consent, the minor may approach the high court for permission to marry in terms of section 25(4) of the Marriage Act. For purposes of this particular application, the minor is regarded as having capacity to litigate. Consent will only be granted if: 1. the court is of the opinion that the refusal to consent by parents, etc. is without adequate reason; and 2. contrary to the minor’s interests – Alcock v Alcock. B v B: these tests are complementary and must not be considered separately. The court must take all the circumstances into account and weigh the reasons for the parents’ refusal, with due allowance for the fact that the parents are in a better position than the court to make a decision of such a personal nature. Even if the minor’s application is unopposed, the court will inevitably override the parent’s refusal to grant consent. The court will then also make an order regarding the matrimonial property system which is to apply in the marriage and if necessary, it may order that a curator be appointed to assist the minor in the execution of an antenuptial contract. (b) instances in which a minor requires no consent to marry (i) a minor who has already been married Section 24(2) – “minor” does not include a person below the age of 21 but who has previously been married and whose marriage has been dissolved by death or divorce. (ii) a person below 21 years of age who has been declared a major Age of Majority Act – someone who has been declared a major in terms of this Act is deemed in all respects to have reached the age of majority. An emancipated minor does not have capacity to marry without consent. (c) the effect of absence of the necessary consent (i) the effect on the validity of the marriage Section 24A(1) of the Marriage Act: a minor’s marriage is not void merely because his or her parents or guardian or the commissioner of child welfare has not consented to it. However, the court may dissolve the marriage on the ground of lack of consent. The application to have the marriage set aside may be made by: