PVL2601 – Summary Study Notes (Family Law)

PVL2601 – Summary Study Notes (Family Law) FAMILY LAW: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE: Marriage is traditionally defined as the legally recognized life long voluntary union between two parties to the exclusion of all others.  Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs marriage is void.  Infant (children below age of 7) do not have the capacity to act.  Prodigals (a person with normal mental ability but who is unable of managing his or her own affairs because he or she squanders his or her assets in an irresponsible reckless way as a result of some defect in his or her power of judgment of character) may marry without consent. A marriage is not valid unless it is lawful for the parties to marry Ex parte Dow – applicant applied for an order declaring this marriage null and void because the wedding had taken place, in conflict with section 29(2) of the marriage act, in front of a garden. Marriage was declared valid. Consensus – forms the basis of and is fundamental requirement for entering into a marriage. Both parties must have the will to marry each other. Error in persona and error in negotio are the only forms of material mistakes recognized in connection with marriage. Misrepresentation – if one party misleads another prior to marriage by making false statements or creating a false impression by concealing information which should have been divulged and thereby persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious nature. Duress- if one spouse was forced to consent to the marriage by duress, the marriage is voidable.In smit v smit the woman was coerced to such an extent by her father and prospective husband that she appeared dazed and lacked the will of her own during the wedding. The court concluded that the duress rendered the marriage voidable and therefore set marriage aside. Undue influence also renders a marriage voidable; generally an unlawful marriage is void. Persons within the prohibited degrees of relationship – our law prohibits marriage between persons within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void. RELATIONSHIPS prohibited -  Consanguinity – relationship which is created by birth between persons. It is irrelevant if legitimate or illegitimate (blood relationship) – direct line – your parents, your children.  Consanguinity (blood relationship)– collateral line – your brothers ,sisters, nephews ,nieces and cousins  Affinity - relationship that comes into place by marriage and blood relations of spouses (relationship by marriage) – direct line – your parents in law, your step children  Affinity (relationship by marriage) – collateral line – your sister in law , brother in law  Ascendants – your grandparents, your parents  Descendants – your children, your grandchildren BLOOD LINES:  A woman may not marry her deceased husbands father  A man may not marry his sisters daughter  A man can marry his deceased’s brother wife  A stepchild is a relative by affinity in the direct line  You and sister in law – affinity in the collateral line Formalities preceding the marriage ceremony – section 12 of the marriage act provide that a marriage officer may not solemnize a marriage unless each party furnishes his or her identity document or prescribed affidavit. For marriage both parties must be present personally. No one can conclude a valid marriage through representation. Marriage officer who solemnizes a marriage, the parties thereto and 2 competent witnesses must sign marriage register immediately after marriage has been solemnized. VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES: VOID MARRIAGE - a void marriage is one which has simply never come into existence. The position is thus exactly as it would have been had the “marriage” never been concluded Ground for nullity –  Marriage is solemnized by someone who is not a competent marriage officer  No witnesses present at marriage  One party is already married  The parties are related to each other within the prohibited degrees of relationship  One of the parties is below age of puberty  One of the parties is mentally ill A CONSEQUENCE OF A VOID MARRIGE – a marriage is void ad initio – from the outset – does not have legal consequences of a valid marriage. VOIDABLE MARRIAGE – is a marriage in which grounds are present either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside. Grounds for setting aside:  Minority  Stuprum – extra marital sexual intercourse with a third party before the marriage  Material mistake  Impotence  Sterility CONSEQUENCES OF A VOIDABLE MARRIAGE: A voidalbe marriage remains in force and has all the normal legal consequences of a valid marriage until it is set aside by a court order. PUTATIVE MARRIAGE – exists when one of the parties to the marriage or both of them married unaware that there is a defect which renders the marriage void. At the time of entering into the marriage the particular party therefore believes in good faith that he or she is entering into a valid civil marriage (example parties did not know that they were related within the prohibited degrees of relationship). Both parties must be unaware of defect. CONSEQUENCES OF A PUTATIVE MARRIAGEPVL2601 – Summary Study Notes (Family Law) FAMILY LAW: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE: Marriage is traditionally defined as the legally recognized life long voluntary union between two parties to the exclusion of all others.  Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs marriage is void.  Infant (children below age of 7) do not have the capacity to act.  Prodigals (a person with normal mental ability but who is unable of managing his or her own affairs because he or she squanders his or her assets in an irresponsible reckless way as a result of some defect in his or her power of judgment of character) may marry without consent. A marriage is not valid unless it is lawful for the parties to marry Ex parte Dow – applicant applied for an order declaring this marriage null and void because the wedding had taken place, in conflict with section 29(2) of the marriage act, in front of a garden. Marriage was declared valid. Consensus – forms the basis of and is fundamental requirement for entering into a marriage. Both parties must have the will to marry each other. Error in persona and error in negotio are the only forms of material mistakes recognized in connection with marriage. Misrepresentation – if one party misleads another prior to marriage by making false statements or creating a false impression by concealing information which should have been divulged and thereby persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious nature. Duress- if one spouse was forced to consent to the marriage by duress, the marriage is voidable.In smit v smit the woman was coerced to such an extent by her father and prospective husband that she appeared dazed and lacked the will of her own during the wedding. The court concluded that the duress rendered the marriage voidable and therefore set marriage aside. Undue influence also renders a marriage voidable; generally an unlawful marriage is void. Persons within the prohibited degrees of relationship – our law prohibits marriage between persons within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void. RELATIONSHIPS prohibited -  Consanguinity – relationship which is created by birth between persons. It is irrelevant if legitimate or illegitimate (blood relationship) – direct line – your parents, your children.  Consanguinity (blood relationship)– collateral line – your brothers ,sisters, nephews ,nieces and cousins  Affinity - relationship that comes into place by marriage and blood relations of spouses (relationship by marriage) – direct line – your parents in law, your step children  Affinity (relationship by marriage) – collateral line – your sister in law , brother in law  Ascendants – your grandparents, your parents  Descendants – your children, your grandchildren BLOOD LINES:  A woman may not marry her deceased husbands father  A man may not marry his sisters daughter  A man can marry his deceased’s brother wife  A stepchild is a relative by affinity in the direct line  You and sister in law – affinity in the collateral line Formalities preceding the marriage ceremony – section 12 of the marriage act provide that a marriage officer may not solemnize a marriage unless each party furnishes his or her identity document or prescribed affidavit. For marriage both parties must be present personally. No one can conclude a valid marriage through representation. Marriage officer who solemnizes a marriage, the parties thereto and 2 competent witnesses must sign marriage register immediately after marriage has been solemnized. VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES: VOID MARRIAGE - a void marriage is one which has simply never come into existence. The position is thus exactly as it would have been had the “marriage” never been concluded Ground for nullity –  Marriage is solemnized by someone who is not a competent marriage officer  No witnesses present at marriage  One party is already married  The parties are related to each other within the prohibited degrees of relationship  One of the parties is below age of puberty  One of the parties is mentally ill A CONSEQUENCE OF A VOID MARRIGE – a marriage is void ad initio – from the outset – does not have legal consequences of a valid marriage. VOIDABLE MARRIAGE – is a marriage in which grounds are present either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside. Grounds for setting aside:  Minority  Stuprum – extra marital sexual intercourse with a third party before the marriage  Material mistake  Impotence  Sterility CONSEQUENCES OF A VOIDABLE MARRIAGE: A voidalbe marriage remains in force and has all the normal legal consequences of a valid marriage until it is set aside by a court order. PUTATIVE MARRIAGE – exists when one of the parties to the marriage or both of them married unaware that there is a defect which renders the marriage void. At the time of entering into the marriage the particular party therefore believes in good faith that he or she is entering into a valid civil marriage (example parties did not know that they were related within the prohibited degrees of relationship). Both parties must be unaware of defect. CONSEQUENCES OF A PUTATIVE MARRIAGEPVL2601 – Summary Study Notes (Family Law) FAMILY LAW: LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID CIVIL MARRIAGE: Marriage is traditionally defined as the legally recognized life long voluntary union between two parties to the exclusion of all others.  Capacity to act – mentally ill persons - if they enter into marriage the moment this occurs marriage is void.  Infant (children below age of 7) do not have the capacity to act.  Prodigals (a person with normal mental ability but who is unable of managing his or her own affairs because he or she squanders his or her assets in an irresponsible reckless way as a result of some defect in his or her power of judgment of character) may marry without consent. A marriage is not valid unless it is lawful for the parties to marry Ex parte Dow – applicant applied for an order declaring this marriage null and void because the wedding had taken place, in conflict with section 29(2) of the marriage act, in front of a garden. Marriage was declared valid. Consensus – forms the basis of and is fundamental requirement for entering into a marriage. Both parties must have the will to marry each other. Error in persona and error in negotio are the only forms of material mistakes recognized in connection with marriage. Misrepresentation – if one party misleads another prior to marriage by making false statements or creating a false impression by concealing information which should have been divulged and thereby persuades the other to enter into marriage, marriage is voidable if misrepresentation was of a serious nature. Duress- if one spouse was forced to consent to the marriage by duress, the marriage is voidable.In smit v smit the woman was coerced to such an extent by her father and prospective husband that she appeared dazed and lacked the will of her own during the wedding. The court concluded that the duress rendered the marriage voidable and therefore set marriage aside. Undue influence also renders a marriage voidable; generally an unlawful marriage is void. Persons within the prohibited degrees of relationship – our law prohibits marriage between persons within certain degrees of relationship. Marriages entered into in conflict with this prohibition are void. RELATIONSHIPS prohibited -  Consanguinity – relationship which is created by birth between persons. It is irrelevant if legitimate or illegitimate (blood relationship) – direct line – your parents, your children.  Consanguinity (blood relationship)– collateral line – your brothers ,sisters, nephews ,nieces and cousins  Affinity - relationship that comes into place by marriage and blood relations of spouses (relationship by marriage) – direct line – your parents in law, your step children  Affinity (relationship by marriage) – collateral line – your sister in law , brother in law  Ascendants – your grandparents, your parents  Descendants – your children, your grandchildren BLOOD LINES:  A woman may not marry her deceased husbands father  A man may not marry his sisters daughter  A man can marry his deceased’s brother wife  A stepchild is a relative by affinity in the direct line  You and sister in law – affinity in the collateral line Formalities preceding the marriage ceremony – section 12 of the marriage act provide that a marriage officer may not solemnize a marriage unless each party furnishes his or her identity document or prescribed affidavit. For marriage both parties must be present personally. No one can conclude a valid marriage through representation. Marriage officer who solemnizes a marriage, the parties thereto and 2 competent witnesses must sign marriage register immediately after marriage has been solemnized. VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES: VOID MARRIAGE - a void marriage is one which has simply never come into existence. The position is thus exactly as it would have been had the “marriage” never been concluded Ground for nullity –  Marriage is solemnized by someone who is not a competent marriage officer  No witnesses present at marriage  One party is already married  The parties are related to each other within the prohibited degrees of relationship  One of the parties is below age of puberty  One of the parties is mentally ill A CONSEQUENCE OF A VOID MARRIGE – a marriage is void ad initio – from the outset – does not have legal consequences of a valid marriage. VOIDABLE MARRIAGE – is a marriage in which grounds are present either before or at the time of the wedding, on the basis of which the court can be requested to set the marriage aside. Grounds for setting aside:  Minority  Stuprum – extra marital sexual intercourse with a third party before the marriage  Material mistake  Impotence  Sterility CONSEQUENCES OF A VOIDABLE MARRIAGE: A voidalbe marriage remains in force and has all the normal legal consequences of a valid marriage until it is set aside by a court order. PUTATIVE MARRIAGE – exists when one of the parties to the marriage or both of them married unaware that there is a defect which renders the marriage void. At the time of entering into the marriage the particular party therefore believes in good faith that he or she is entering into a valid civil marriage (example parties did not know that they were related within the prohibited degrees of relationship). Both parties must be unaware of defect. CONSEQUENCES OF A PUTATIVE MARRIAGE