Family Law: Topic 5
Civil Marriage
- A civil marriage is a marriage in terms of the Marriage Act or the Civil Union
Act.
- Traditionally, marriage is defined as a legally recognised voluntary union for
life between a man and a woman, excluding all others.
- However, the Civil Union Act shifts this definition to two people in order to
accommodate same-sex couples.
- Marriage is based in Roman-Dutch common law, many of the traditional laws
are still in practice today such as support and cohabitation.
- Some rules have also been abolished or changed and are now regulated by
law.
- It is more accurate to use the term civil marriage than common law marriage.
- A civil marriage is one that is not done in terms of customary or religious
practices.
Requirements for Civil Marriage
1. Capacity
- Spouses must have the absolute and relative capacity to marry one another.
o Absolute Capacity – capacity to marry
- This is the legal status and capacity to perform juristic acts.
- A marriage is only valid if both parties are able to understand the legal nature
and consequences of the act.
- Peoples capacity to marry may be restricted on other grounds such as age or
an existing marriage.
1. Mental illness restricts people from understanding the legal nature
and consequences of their actions. Often the mentally ill are motivated
to act based on delusions. Therefore, a marriage concluded by a
mentally ill person is void.
2. Age is also a factor that restricts one’s capacity to marry. If a minor
below the age of puberty (12 girls or 14 boys) concludes a marriage it
is void. According to the Marriage Act, minors over the age of puberty
can marry with the consent of their guardians. Minor boys and girls
below 15 require the consent of the Minister of Home Affairs. Minors
cannot conclude civil marriages according to the Civil Union Act.
3. Those who are insolvent or have been appointed a curator in the case
of physical incapacity are allowed to marry. Those who are severely
intoxicated do not understand the legal nature and consequences of
, their actions and cannot validly marry. The onus is on the party
claiming incapacity to prove it.
4. Those who are already civilly married are unable to conclude another
civil marriage. Spouses who are already married according to
customary law (monogamously) may conclude a civil marriage with
their customary law spouse but may not conclude a civil marriage with
anyone else. Civil marriage to more than one person is illegal and thus
a crime.
o Relative Capacity – capacity to marry each other
- This is the capacity to specifically marry each other, meaning you have full
capacity to marry but that doesn’t necessarily mean you can marry each
other.
- Some people are related to each other and therefore cannot marry.
Prohibited degrees of relationship: Those who are too closely related
are prohibited from marrying.
This is based on relationships of consanguinity (blood) and
relationships of affinity (through marriage) as well as direct and
collateral relationships.
Those related in a direct line are descendants or ascendants of one
another.
Collaterals are those who have common ancestors but are not related
in the direct line such as siblings, aunts or cousins.
We look at the degrees of relationship between collaterals and the
common ancestor to determine whether or not two collaterals can
marry.
We count the steps up to the common ancestor from one collateral and
then add the number of steps from the common ancestor to the other
collateral in question.
The total number of steps is the “degree” of the relationship between
two collaterals.
Relationships of affinity can be in the direct line or collateral. One is not
legally related to the blood relative of a spouse.
Marriages cause people to become related to other people but not by
blood.
Prohibited degrees of blood relationship:
It is forbidden to marry someone to whom you are related to by blood in
the direct line.
One may marry a collateral blood relative if there are four or more
degrees of relationship between them. (Siblings = 2 degrees, aunts = 3
degrees, cousins = 4 degrees). This will also apply to half-blood
relatives.
, Prohibited degrees of relationship by marriage:
It is forbidden to marry someone to whom one’s spouse is related by blood
in the direct line, even if the marriage is ended.
However, there is no prohibition on marrying the collaterals of a former
spouse- meaning you can marry your spouses’ brother if they also not
married.
Adopted children
Children who are adopted cannot marry any of their biological family in the
same sense as non-adopted children.
Furthermore, they cannot marry their adopted parents. There is nothing
said of the rest of the adoptive family.
An adopted child may marry anyone in his or her adoptive family apart
from the adoptive parents.
Opposite and Same-Sex Marriages
Common law dictates that only opposite sex couples could marry.
In the Fourie case this was ruled unconstitutional and now civil marriages
can be concluded by same-sex couples.
The Civil Union Act was created to give effect to this decision rather than
amending the Marriage Act.
Therefore, only opposite-sex couples can marry in terms of the Marriage
Act.
2. Consensus: Voluntary Informed Consent
- The basis of a civil marriage is that it is a voluntary union between two people.
- Therefore, people can only marry if they give voluntary consent to the
marriage, which must also be informed consent.
- Both parties must understand and consent to the material aspects of the
marriage.
- If this requirement is not fulfilled the marriage will be void, or it will be voidable
at the instance of the wronged party.
Lack of Capacity to give consent
Lack of capacity, such as mental illness or severe intoxication, renders
one unable to give valid consent.
Metus (Duress or Intimidation)
There will be no voluntary consent to marriage If a party is forced into the
marriage as a result of intimidation or duress, such as the threat of
violence.
The marriage can be annulled if the coerced party can show that:
1. The fear was sufficiently serious to invalidate consent.
2. The fear was reasonable.
Civil Marriage
- A civil marriage is a marriage in terms of the Marriage Act or the Civil Union
Act.
- Traditionally, marriage is defined as a legally recognised voluntary union for
life between a man and a woman, excluding all others.
- However, the Civil Union Act shifts this definition to two people in order to
accommodate same-sex couples.
- Marriage is based in Roman-Dutch common law, many of the traditional laws
are still in practice today such as support and cohabitation.
- Some rules have also been abolished or changed and are now regulated by
law.
- It is more accurate to use the term civil marriage than common law marriage.
- A civil marriage is one that is not done in terms of customary or religious
practices.
Requirements for Civil Marriage
1. Capacity
- Spouses must have the absolute and relative capacity to marry one another.
o Absolute Capacity – capacity to marry
- This is the legal status and capacity to perform juristic acts.
- A marriage is only valid if both parties are able to understand the legal nature
and consequences of the act.
- Peoples capacity to marry may be restricted on other grounds such as age or
an existing marriage.
1. Mental illness restricts people from understanding the legal nature
and consequences of their actions. Often the mentally ill are motivated
to act based on delusions. Therefore, a marriage concluded by a
mentally ill person is void.
2. Age is also a factor that restricts one’s capacity to marry. If a minor
below the age of puberty (12 girls or 14 boys) concludes a marriage it
is void. According to the Marriage Act, minors over the age of puberty
can marry with the consent of their guardians. Minor boys and girls
below 15 require the consent of the Minister of Home Affairs. Minors
cannot conclude civil marriages according to the Civil Union Act.
3. Those who are insolvent or have been appointed a curator in the case
of physical incapacity are allowed to marry. Those who are severely
intoxicated do not understand the legal nature and consequences of
, their actions and cannot validly marry. The onus is on the party
claiming incapacity to prove it.
4. Those who are already civilly married are unable to conclude another
civil marriage. Spouses who are already married according to
customary law (monogamously) may conclude a civil marriage with
their customary law spouse but may not conclude a civil marriage with
anyone else. Civil marriage to more than one person is illegal and thus
a crime.
o Relative Capacity – capacity to marry each other
- This is the capacity to specifically marry each other, meaning you have full
capacity to marry but that doesn’t necessarily mean you can marry each
other.
- Some people are related to each other and therefore cannot marry.
Prohibited degrees of relationship: Those who are too closely related
are prohibited from marrying.
This is based on relationships of consanguinity (blood) and
relationships of affinity (through marriage) as well as direct and
collateral relationships.
Those related in a direct line are descendants or ascendants of one
another.
Collaterals are those who have common ancestors but are not related
in the direct line such as siblings, aunts or cousins.
We look at the degrees of relationship between collaterals and the
common ancestor to determine whether or not two collaterals can
marry.
We count the steps up to the common ancestor from one collateral and
then add the number of steps from the common ancestor to the other
collateral in question.
The total number of steps is the “degree” of the relationship between
two collaterals.
Relationships of affinity can be in the direct line or collateral. One is not
legally related to the blood relative of a spouse.
Marriages cause people to become related to other people but not by
blood.
Prohibited degrees of blood relationship:
It is forbidden to marry someone to whom you are related to by blood in
the direct line.
One may marry a collateral blood relative if there are four or more
degrees of relationship between them. (Siblings = 2 degrees, aunts = 3
degrees, cousins = 4 degrees). This will also apply to half-blood
relatives.
, Prohibited degrees of relationship by marriage:
It is forbidden to marry someone to whom one’s spouse is related by blood
in the direct line, even if the marriage is ended.
However, there is no prohibition on marrying the collaterals of a former
spouse- meaning you can marry your spouses’ brother if they also not
married.
Adopted children
Children who are adopted cannot marry any of their biological family in the
same sense as non-adopted children.
Furthermore, they cannot marry their adopted parents. There is nothing
said of the rest of the adoptive family.
An adopted child may marry anyone in his or her adoptive family apart
from the adoptive parents.
Opposite and Same-Sex Marriages
Common law dictates that only opposite sex couples could marry.
In the Fourie case this was ruled unconstitutional and now civil marriages
can be concluded by same-sex couples.
The Civil Union Act was created to give effect to this decision rather than
amending the Marriage Act.
Therefore, only opposite-sex couples can marry in terms of the Marriage
Act.
2. Consensus: Voluntary Informed Consent
- The basis of a civil marriage is that it is a voluntary union between two people.
- Therefore, people can only marry if they give voluntary consent to the
marriage, which must also be informed consent.
- Both parties must understand and consent to the material aspects of the
marriage.
- If this requirement is not fulfilled the marriage will be void, or it will be voidable
at the instance of the wronged party.
Lack of Capacity to give consent
Lack of capacity, such as mental illness or severe intoxication, renders
one unable to give valid consent.
Metus (Duress or Intimidation)
There will be no voluntary consent to marriage If a party is forced into the
marriage as a result of intimidation or duress, such as the threat of
violence.
The marriage can be annulled if the coerced party can show that:
1. The fear was sufficiently serious to invalidate consent.
2. The fear was reasonable.
