FAMILY LAW PVL2601
29 OCTOBER exam prep. Multiple choice covered, short questions, long
questions, and summarized notes. This is pass guaranteed pack.
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, 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 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 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 provides that a marriage officer may
not solemnize (conduct a marriage ceremony) a minor’s marriage, unless the consent which is lega
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
1 | P a g e Compiled bystudybuddy10111… Any error omitted please revert to your study guide… For more law study packs reach me on
29 OCTOBER exam prep. Multiple choice covered, short questions, long
questions, and summarized notes. This is pass guaranteed pack.
0 | P a g e Compiled bystudybuddy10111… Any error omitted please revert to your study guide… For more law study packs reach me on
, 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 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 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 provides that a marriage officer may
not solemnize (conduct a marriage ceremony) a minor’s marriage, unless the consent which is lega
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
1 | P a g e Compiled bystudybuddy10111… Any error omitted please revert to your study guide… For more law study packs reach me on
