PVL2601 EXAM PACK- MUST READ.

SECTION 2: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A CIVIL MARRIAGE Maiage is t aditio all defi ed as the legall eogised 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 Musli aiages peit pol g . Fu theo e, ith the eat et of the Ci il U ios At, a i il u io 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 p es i ed i this At, to the elusio, hile it lasts, of all othes. 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. PVL2601 EXAM PACK- MUST READ. Page 2 Capacity to act Persons who have no capacity to act, such as the mentally ill and infants (persons below 7 years of age), are totally incapable of entering into a marriage. Others, like minors who are over the age of puberty, need consent to supplement their limited capacity to act. (1) Declared prodigals The p odigal a a ithout his o he u ato s o set. The eight of opi io faou s the ule that the prodigal s ad atage detei es hethe the a iage is i o out of o u it of p opet , othe ise, the sele tio of the at i o ial p opet sste ould aou t to a u autho ized dispositio of the p odigal 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 provides that a marriage officer a ot sole ize o du t a a iage ee o a i o s a iage, u less the o se t hi h is legall 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 a ot a ithout hai g o tai ed soe othe peso s ose t, the a iage offi e a efuse 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 Page 3 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 wedlo k, the othe s o set is eeded as she is the hild s gua dia . (ii) legal guardian A o pha fo ho a guadia has ee appoi ted ust o tai his o he guadia s peissio to a . (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 a iage is dee ed desi a le. Ee if the Mi istes o set is o tai ed, all the other legal e ui ee ts still hae to e o plied ith, so the pae ts o set ust also e o tai ed ad 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 a iage as i all othe espets sole ized ao di g to the Maiage At s p o isio s; 3. there is no other lawful impediment to the marriage. The Mi istes po e o l applies to a iages of gi ls et ee ad eas of age and boys between 14 and 18 years of age. (iv) Commissioner of child welfare Whee eithe of the i o s pae ts, o oth of the, o his o he guadia is aset, e tall ill, o i a 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 elfae. The o issio e of hild elfae ust also detei e hethe it ould e i the i o s interests to enter into an antenuptial contract. If so, the commissioner must assist the minor in the eeutio of the ate uptial o t at ad his o he assista e is dee ed to e the assista e of the i o 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. o t a to the i o s i teests – Alcock v Alcock. Page 4 B v B: these tests are complementary and must not be considered separately. The court must take all the i u sta es i to aou t ad eigh the easo s fo the pa e ts efusal, 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. Ee if the i o s appli atio is u opposed, the ou t ill i eita l o e ide the paet s efusal to gat 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) – i o does ot i lude a pe so elo the age of ut ho has p e iousl ee a ied 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 Se tio A of the Maiage At: a i o s a iage is ot oid e el eause his o he pae ts o 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: 1. the i o s pa e ts o guadia , efoe the i o attai s ajo it ad ithi si eeks f o the date on which they become aware of the existence of the marriage; 2. the minor himself or herself, before he or she attains majority or within three months thereafter. The court may not set the marriage aside unless it is satisfied that the dissolution of the marriage is in the i o s i teest. (ii) the effect of the patrimonial consequences of the marriage Section 24 of the Matrimonial Property Act governs the patrimonial consequences of a marriage a minor entered into without consent. Patrimonial consequences if the marriage is set aside Section 24(1): the court may make an order with regard to the division of the matrimonial property of the spouses as it a dee just . The ou t ill p o al hae egad to fato s su h as the espeti e ages of the parties, their financial circumstances, their wishes and whether the major spouse took advantage of the i epeie e of the i o spouse a d e efited at the lattes epese. The patrimonial consequences if the marriage is not set aside