Family Law Notes 2

1. Requirements for a Valid Civil Marriage

For a civil marriage to be valid in South Africa, the following must be satisfied:

(A) Capacity to Marry

 Absolute Capacity: Each party must have the legal ability to marry (e.g., not
mentally ill, not already married, not underage without consent).
 Relative Capacity: The parties must be legally allowed to marry each other
(e.g., not within prohibited degrees of relationship).

(B) Prescribed Formalities

1. Solemnisation by a Marriage Officer

o Must be conducted by a legally appointed marriage officer
(magistrates, religious ministers designated by the Minister of Home
Affairs).
2. Identification Documents
o Both parties must produce valid IDs or affidavits.
3. Approved Marriage Formula
o The couple must publicly declare consent using the prescribed formula
(either civil or religious, if approved).
4. Two Competent Witnesses
o Required to attest to the marriage.
5. Venue Requirements
o Must be solemnised in:
 A public office or private dwelling with open doors.
 A church or religious building (under the Marriage Act).
 Other locations (e.g., hospital) in exceptional cases (e.g.,
serious illness).

(C) Consensus (Voluntary and Informed Consent)

  Both parties must freely and knowingly consent to the marriage.
 Lack of consent (due to coercion, fraud, or mistake) may render the
marriage void or voidable.

2. Capacity of Persons to Marry

(A) Mental Capacity

 A person who is mentally ill and unable to understand the nature of marriage
cannot validly marry.
 Severe intoxication at the time of marriage may also invalidate consent.

(B) Age Requirements

 Minimum Age:
o Girls: 12 (puberty), but under 15 requires Ministerial consent.
o Boys: 14 (puberty), but under 18 requires Ministerial consent.
 Guardian’s Consent: Minors above puberty need guardian permission.
 Civil Union Act: Only adults (18+) can marry under this Act.

(C) Existing Marital Status

 Monogamy Rule: A person cannot marry if already in a valid civil or

customary marriage (bigamy is void).
 Customary Marriage Conversion: A monogamous customary marriage can
be converted to a civil marriage.

(D) Other Factors

 Insolvency, prodigality, or physical incapacity do not affect capacity to

marry.

3. Prohibited Degrees of Relationship

(A) Consanguinity (Blood Relations)

 Prohibited Marriages:
o Direct line: Parent-child, grandparent-grandchild.
o Collateral line (1st–3rd degree): Siblings, uncle/aunt-niece/nephew.
o Allowed: 4th-degree relatives (e.g., first cousins).

(B) Affinity (Relations by Marriage)

 Prohibited:
o Step-parent and step-child.
o Parent-in-law and child-in-law (even after divorce or death of spouse).
 Allowed:
o Former brother/sister-in-law (collateral relatives of ex-spouse).

(C) Adoption

 An adopted child cannot marry biological relatives within prohibited degrees.

 Prohibited: Adoptive parent and adopted child.

4. Legal Principles Relating to Consensus

(A) Requirements for Valid Consent

 Voluntary: No coercion or undue influence.

 Informed: Must understand the nature and consequences of marriage.

(B) Defects in Consent

1. Duress (Metus)
o If consent was obtained through force or serious threats, the
marriage is voidable.
o Example: Threats of violence (but not fear of disapproval).
2. Material Mistake (Error)
o Error in negotio: One party did not realise they were marrying (void).
 o Error in personam: Mistake about identity (rare, but voidable).
o Non-material mistakes (e.g., wealth, religion) do not invalidate
marriage.
3. Fraudulent Misrepresentation
o Concealing pregnancy by another man or sterility may make
marriage voidable.

(C) Sham Marriages

 If parties never intended a real marital relationship (e.g., immigration fraud),

the marriage is valid but may be challenged.
 Termination: Requires divorce, not annulment (Martens v Martens).

5. Void, Voidable, Valid, Sham & Putative Marriages

Type Definition Legal Consequences

Valid
Meets all legal requirements. Full marital rights & duties apply.
Marriage
Void Never legally existed (e.g., incest, No legal effects; no need for
Marriage bigamy). annulment.
Voidable Valid until annulled (e.g., minor Retroactively nullified; children
Marriage without consent, duress). remain legitimate.
Sham No genuine intent to marry (e.g., Legally valid but may be
Marriage immigration fraud). challenged.
Putative Void, but one party believed it Children treated as legitimate;
Marriage was valid (good faith). property division as if valid.

6. Grounds for Annulment (Voidable Marriages)

1. Minority without Consent (if required).

2. Material Mistake (e.g., error in personam).
3. Duress (Metus) – Coerced consent.
 4. Fraudulent Concealment (e.g., hidden pregnancy, sterility).
5. Impotence (if unknown at marriage).

7. Legal Consequences of Marriage

(A) Consortium Omnis Vitae

 Definition: The marital bond encompassing cohabitation, fidelity, and mutual

support.
 Enforcement: Courts do not force cohabitation but protect against third-party
interference (e.g., adultery claims).

(B) Duty of Support

 Spouses must financially support each other based on means and needs.
 Post-divorce: Maintenance may continue but is not automatic.

(C) Household Necessaries

 Both spouses can incur debts for household essentials (e.g., food, utilities).
 In community of property: Both liable for household debts.

Key Cases & Statutes

 Marriage Act 25 of 1961 (opposite-sex marriages).

 Civil Union Act 17 of 2006 (same-sex & opposite-sex civil unions).
 Ex Parte Dow: Venue formalities not strictly enforced if purpose (publicity) is
met.
 Martens v Martens: Sham marriages still require divorce.
Learning Unit 8

Theme 1: Variable Consequences of Marriage

Learning Objective 1: Apply the law of matrimonial property regarding the different
systems and changing of systems (s8, s20, s21 of MPA 1984).

🔹 Types of Marriages Recognized in South Africa:

 Civil/common law marriages

 African customary law marriages
 Islamic personal law marriages

🔹 Matrimonial Property Systems:

1. In Community of Property
o Spouses share a joint estate.
o Joint liability for profit/loss.
2. Out of Community of Property
o Each spouse retains a separate estate.
o No automatic liability for the other’s debts.

🔹 Changing Matrimonial Property Systems:

 Section 20(1): A spouse may apply to court for immediate division of joint
estate if their interest is being or will be prejudiced.
 Section 20(2): Court may order replacement of matrimonial property
system while marriage continues.
 Section 8 & 21: Generally referenced in children’s matters, but Section 21 of
MPA (not Children’s Act) allows spouses to jointly apply to court to change
their matrimonial property regime.

🔹 Key Case: Van der Merwe v Road Accident Fund

  Constitutional Court struck down s18(b)'s distinction between patrimonial and
non-patrimonial damages.
 Held that damages for bodily injury should not fall into the joint estate.
 Important for understanding how constitutional principles affect
matrimonial property law.

🟣 Theme 2: Marriage in Community of Property

Learning Objective 2: Apply the law regarding:

 Characteristics of the joint estate

 Liability for debts/delicts
 Administration of joint estate
 Litigation capacity
 Calculation of joint estate value

🔹 Characteristics of the Joint Estate:

 Shared property and liabilities.

 Historically viewed as indivisible and unified.
 Equal entitlement to benefits and responsibilities.

🔹 Liability for Debts and Delicts:

 Delictual damages historically couldn’t be claimed between spouses.

 s18(b) changed by court: damages for patrimonial and non-patrimonial
loss can now be recovered.
 s19 MPA: Damages payable by delict-causing spouse's separate property; if
insufficient, joint estate may be used.

🔹 Administration:

 Reforms in MPA 1984 abolished husband’s marital power.

 Spouses now have equal capacity to administer the joint estate.
 Certain actions require written or informed consent of the other spouse.
🔹 Litigation Capacity:

 Spouses can sue or be sued independently (e.g., Van der Merwe case).

🔹 Calculating Value of Joint Estate:

 Requires valuation of assets minus liabilities.

 No specific formula provided, but usually done at the end of marriage
(divorce or death).

🟣 Theme 3: Marriage Out of Community of Property (Without Accrual)

Learning Objective 3: Apply the law regarding:

 General characteristics
 Valid antenuptial contract
 Binding effects on third parties

🔹 General Characteristics:

 No joint estate.
 Each spouse retains full control and ownership of their estate.
 Debts remain personal unless incurred jointly.

🔹 Antenuptial Contract (ANC):

 Must be signed before a notary public and registered.

 Must be concluded before marriage to be valid.
 Verbal or informal agreements are not enforceable (Van Jaarsveld v
Bridges).

🔹 Binding Nature for Third Parties:

 Third parties are generally bound by a properly registered ANC.

  May not be bound if:
o Dealing with a spouse unaware of the ANC.
o The contract was not properly executed or registered.
o There’s implied or express authority leading to shared liability.

🟣 Theme 4: Marriage Out of Community of Property (With Accrual)

Learning Objective 4: Apply the law with reference to:

 General characteristics
 Calculation of accrual claims

🔹 General Characteristics:

 Each spouse retains a separate estate during marriage.

 At divorce or death, the increase (accrual) in each estate is compared.
 The spouse with the smaller accrual has a claim against the other.

🔹 Accrual Calculation:

Accrual = Estate Value at End – Estate Value at Start (adjusted for inflation)

 ANC must clearly exclude or include accrual.

 Certain property can be excluded in the contract (e.g., inheritance,
donations).

Formula:
Accrual claim = (Accrual of richer spouse – Accrual of poorer spouse) ÷ 2