1
Family Law Notes – Semester 2 – 2017
In Family law consider what is a marriage and what does it entail. This
looks at:
- Definition and requirements of a valid marriage
- Consequences of a marriage
Once people are aware of what a marriage entails, they must elect which
type of matrimonial property system is best applicable for them. These
systems include:
- Marriage in community of property
- Marriage in community of property with an ante-nuptial contract
- Marriage out of community of property with the accrual system
- Marriage out of community of property excluding the accrual system
All marriages will end either upon death or divorce, so we need to
consider the dissolution of marriages and the consequences that flow
from same. This looks at:
- How the marriage can dissolve
- If on death can a party claim maintenance
- If on divorce what can be claimed: pension interest, forfeiture,
redistribution or maintenance
- The effect on children
Other than a marriage concluded in terms of the Marriage Act (Civil
Marriage) other unions can be entered into and we need to consider the
recognition of such unions and the consequences of same. These include:
- Civil Unions
- Customary Marriages
- Religious marriages – Muslim and Hindu
- Life partners – same sex and hetrosexual
Lastly we must look at children and their rights, including your parental
rights and responsibilities attributed to certain people and the duty of
support.
The consequences for all types of unions are basically the same unless
otherwise indicated.
, 2
LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID
MARRIAGE
Definition
Marriage is the legally recognised lifelong voluntary union between one
man and one woman to the exclusion of all other persons.
This definition relates only to civil marriages between a man and a woman
since Muslim, Hindu and customary marriages permit husbands to take
more than one wife.
The Civil Union Act allows marriages between same sex / heterosexual
couples.
Although marriage may look like a contract, it is not a contract.
Requirements for a valid marriage:
1. Capacity to act.
2. Consensus.
3. Marriage must be lawful.
4. Formalities must be complied with.
1. Capacity to Act
Some persons are totally incapable of marrying because they have no
capacity to act (e.g. infans and mentally ill persons).
Certain people may marry, but only with the consent of certain other
persons. The most important example is minor children.
A girl under 12 and a boy under 14 are absolutely incompetent to marry.
a. Declared Prodigals
A prodigal is a person with normal mental ability but who is not capable
of managing his/her own affairs because he squanders his assets in an
irresponsible and reckless way.
A measure of uncertainty exists as to whether the marriage of a declared
prodigal is completely invalid.
Some cases say that a declared prodigal cannot marry without obtaining
the consent of his curator, and if he does, the marriage must be out of
community of property.
Modern South African writers adopt the view that the prodigal may marry
without the curator’s consent, but it is unclear which matrimonial
property system operates in such a marriage.
, 3
b. Insane Persons
An insane person is a person with a mental disorder or disability who
cannot understand the nature and consequences of his acts, due to his
disorder.
If a person is de facto insane, at the time of contracting a marriage, the
marriage will be void.
A marriage contracted during a lucid interval is perfectly valid.
c. Persons under curatorship because they are incapable of
managing their own affairs
Such persons are not insane, but simply incapable of looking after their
own affairs due to disability or chronic illness.
They are competent to conclude a valid marriage without the consent of
their curator (Pienaar v Pienaar’s Curator).
d. Minors
2. Consensus (Agreement)
The parties must be in agreement that they want to marry each other.
Sometimes no genuine consensus exists, or consensus is defective.
The factors having an effect on consensus are mistake, misrepresentation,
duress and undue influence.
a. Mistake (unclear on effect of validity)
Only a material mistake excluded consensus.
Error in personam (concerning the I.D. of the other party) and error in
negotio (concerning the nature of the act) are the only forms of material
mistake in respect of marriage.
It is unclear whether a material mistake renders the marriage void or
voidable.
Joubert says the marriage is voidable.
Heaton says it is void, but should be voidable
A simulated marriage is a marriage of convenience.
Simulated marriages are valid because the parties had the intention to
conclude the marriage and therefore can only be terminated by divorce.
A non-material mistake is irrelevant and no ground for dissolution.
The court in Martens v Martens held that a simulated marriage is a valid
marriage since the man and woman actually had the intention of entering
into a valid marriage.
, 4
b. Misrepresentation (voidable)
One party misleads the other prior to marriage by making untruthful
statements or giving false impression to other and thereby persuades the
other to enter the marriage.
Only a serious misrepresentation affects the validity of a marriage.
Example of a serious misrepresentation. Woman already pregnant by
another man at time of marriage and concealing it or impotence, sterility.
The effect a material misrepresentation has on the validity of the
marriage is that it can be annulled / set aside.
c. Duress (voidable)
Force, undue pressure.
Here one of the parties has been forced to consent to the marriage.
The marriage will be voidable.
In Smith v Smith, the bride was threatened (and assaulted) by parents and
future husband, that she went through ceremony in daze. Set aside.
d. Undue Influence (voidable)
Where one of the parties to the marriage has been influenced in his or her
choice and has been persuaded to enter into the marriage, due to the
influence.
3. The Marriage must be lawful
An unlawful marriage is void.
There are 6 groups of people who cannot marry:
1. Persons already married.
2. Persons of same sex. *still can’t enter a civil marriage in terms of the
Marriage Act
3. Adoptive parent and adopted child.
4. Prohibited degrees of relationship.
5. Guardian and ward.
6. Prohibition on mixed marriages. *since changed
i) Persons already married
A person, who is already married, can’t enter into a further civil marriage
while the former marriage still exists.
The second civil “marriage” will be void.
The second “marriage” can however be a putative marriage, but the
marriage will still be void.
Family Law Notes – Semester 2 – 2017
In Family law consider what is a marriage and what does it entail. This
looks at:
- Definition and requirements of a valid marriage
- Consequences of a marriage
Once people are aware of what a marriage entails, they must elect which
type of matrimonial property system is best applicable for them. These
systems include:
- Marriage in community of property
- Marriage in community of property with an ante-nuptial contract
- Marriage out of community of property with the accrual system
- Marriage out of community of property excluding the accrual system
All marriages will end either upon death or divorce, so we need to
consider the dissolution of marriages and the consequences that flow
from same. This looks at:
- How the marriage can dissolve
- If on death can a party claim maintenance
- If on divorce what can be claimed: pension interest, forfeiture,
redistribution or maintenance
- The effect on children
Other than a marriage concluded in terms of the Marriage Act (Civil
Marriage) other unions can be entered into and we need to consider the
recognition of such unions and the consequences of same. These include:
- Civil Unions
- Customary Marriages
- Religious marriages – Muslim and Hindu
- Life partners – same sex and hetrosexual
Lastly we must look at children and their rights, including your parental
rights and responsibilities attributed to certain people and the duty of
support.
The consequences for all types of unions are basically the same unless
otherwise indicated.
, 2
LEGAL REQUIREMENTS FOR THE CONCLUSION OF A VALID
MARRIAGE
Definition
Marriage is the legally recognised lifelong voluntary union between one
man and one woman to the exclusion of all other persons.
This definition relates only to civil marriages between a man and a woman
since Muslim, Hindu and customary marriages permit husbands to take
more than one wife.
The Civil Union Act allows marriages between same sex / heterosexual
couples.
Although marriage may look like a contract, it is not a contract.
Requirements for a valid marriage:
1. Capacity to act.
2. Consensus.
3. Marriage must be lawful.
4. Formalities must be complied with.
1. Capacity to Act
Some persons are totally incapable of marrying because they have no
capacity to act (e.g. infans and mentally ill persons).
Certain people may marry, but only with the consent of certain other
persons. The most important example is minor children.
A girl under 12 and a boy under 14 are absolutely incompetent to marry.
a. Declared Prodigals
A prodigal is a person with normal mental ability but who is not capable
of managing his/her own affairs because he squanders his assets in an
irresponsible and reckless way.
A measure of uncertainty exists as to whether the marriage of a declared
prodigal is completely invalid.
Some cases say that a declared prodigal cannot marry without obtaining
the consent of his curator, and if he does, the marriage must be out of
community of property.
Modern South African writers adopt the view that the prodigal may marry
without the curator’s consent, but it is unclear which matrimonial
property system operates in such a marriage.
, 3
b. Insane Persons
An insane person is a person with a mental disorder or disability who
cannot understand the nature and consequences of his acts, due to his
disorder.
If a person is de facto insane, at the time of contracting a marriage, the
marriage will be void.
A marriage contracted during a lucid interval is perfectly valid.
c. Persons under curatorship because they are incapable of
managing their own affairs
Such persons are not insane, but simply incapable of looking after their
own affairs due to disability or chronic illness.
They are competent to conclude a valid marriage without the consent of
their curator (Pienaar v Pienaar’s Curator).
d. Minors
2. Consensus (Agreement)
The parties must be in agreement that they want to marry each other.
Sometimes no genuine consensus exists, or consensus is defective.
The factors having an effect on consensus are mistake, misrepresentation,
duress and undue influence.
a. Mistake (unclear on effect of validity)
Only a material mistake excluded consensus.
Error in personam (concerning the I.D. of the other party) and error in
negotio (concerning the nature of the act) are the only forms of material
mistake in respect of marriage.
It is unclear whether a material mistake renders the marriage void or
voidable.
Joubert says the marriage is voidable.
Heaton says it is void, but should be voidable
A simulated marriage is a marriage of convenience.
Simulated marriages are valid because the parties had the intention to
conclude the marriage and therefore can only be terminated by divorce.
A non-material mistake is irrelevant and no ground for dissolution.
The court in Martens v Martens held that a simulated marriage is a valid
marriage since the man and woman actually had the intention of entering
into a valid marriage.
, 4
b. Misrepresentation (voidable)
One party misleads the other prior to marriage by making untruthful
statements or giving false impression to other and thereby persuades the
other to enter the marriage.
Only a serious misrepresentation affects the validity of a marriage.
Example of a serious misrepresentation. Woman already pregnant by
another man at time of marriage and concealing it or impotence, sterility.
The effect a material misrepresentation has on the validity of the
marriage is that it can be annulled / set aside.
c. Duress (voidable)
Force, undue pressure.
Here one of the parties has been forced to consent to the marriage.
The marriage will be voidable.
In Smith v Smith, the bride was threatened (and assaulted) by parents and
future husband, that she went through ceremony in daze. Set aside.
d. Undue Influence (voidable)
Where one of the parties to the marriage has been influenced in his or her
choice and has been persuaded to enter into the marriage, due to the
influence.
3. The Marriage must be lawful
An unlawful marriage is void.
There are 6 groups of people who cannot marry:
1. Persons already married.
2. Persons of same sex. *still can’t enter a civil marriage in terms of the
Marriage Act
3. Adoptive parent and adopted child.
4. Prohibited degrees of relationship.
5. Guardian and ward.
6. Prohibition on mixed marriages. *since changed
i) Persons already married
A person, who is already married, can’t enter into a further civil marriage
while the former marriage still exists.
The second civil “marriage” will be void.
The second “marriage” can however be a putative marriage, but the
marriage will still be void.
