Study Unit 3: Legal Requirements for the Conclusion of a Valid Civil and Customary Marriage

Vocabulary flashcards covering legal requirements for valid civil and customary marriages, incapacity, consent, defects in consensus, void and voidable marriages, putative marriages, and foreign marriages based on Study Unit 3 notes.

Marriage (traditional legal definition)

A legally recognised, lifelong, voluntary union between one man and one woman to the exclusion of all other persons.

Absolute Incapacity to Marry

A complete lack of capacity to enter into a valid marriage, such as being already married, being mentally incapable of understanding marriage as a juristic act, or being below marriageable age.

Alteration of Sex Description and Sex Status Act 49 of 2003

Legislation providing that a person whose altered sexual characteristics are recognised under the Act may marry a person of the opposite sex (cf. W v W; KOS v Minister of Home Affairs 2017 (6) SA 588 (WCC)).

Minor Marriage Consent (Parental Responsibilities and Rights)

Under Section 18 of the Children's Act and Section 24(1) of the Marriage Act, written consent from the holder of PR&R is required for a minor's marriage to be solemnised.

Section 26 of the Marriage Act

Statutory provision requiring written consent from the Minister of Home Affairs for a girl under 15 years or a boy under 18 years to marry.

Section 25(4) of the Marriage Act

Provision allowing a minor to apply to the High Court for consent to marry if the holder of PR&R or Children's Court refuses consent without adequate reason and against the minor's best interests.

Consanguinity

Relationship by blood, divided into the direct line (ascendants and descendants) and the collateral line (persons sharing a common ancestor).

Prohibited Degrees of Consanguinity (Collateral Line)

The legal rule prohibiting marriage between collateral blood relations if one or both parties are within one degree of the common ancestor.

Affinity

Relationship created through marriage; direct line relations by marriage are prohibited from marrying, but collateral line relations by marriage are allowed to marry.

Section 242(2)(c) of the Children's Act

Provision confirming that adoption severs all legal ties between a child and their biological parents, replacing them with a legal relationship with the adoptive parents, though existing blood relations remain bound by common law rules of consanguinity.

Prodigals under Curatorship

Persons placed under curatorship due to an inability to manage their affairs, who retain the capacity to marry without the consent of their curator (unlike persons under curatorship due to mental illness).

Error in persona

A material mistake regarding the identity of the other party to a marriage, which destroys consensus and renders the marriage void.

Error in negotio

A material mistake regarding the nature of the legal act being performed, which destroys consensus and renders the marriage void.

Prenuptial Impotence

Incurable inability to have sexual intercourse existing at the time of marriage, rendering the marriage voidable if both parties contemplated intercourse and the plaintiff was unaware of the condition.

Van Niekerk v Van Niekerk

Prescribed case holding that mere sterility existing at the time of marriage renders a marriage voidable if the parties intended to have children.

Venter v Venter

Prescribed case holding that sterility must be fraudulently concealed by a party to render a marriage voidable.

Stuprum

A ground for setting aside a voidable marriage where the wife is pregnant with another man's child at the time of marriage without the husband's knowledge.

Ex officio Marriage Officers

Officials who hold statutory authority to solemnise marriages by virtue of their office, including magistrates, special justices of the peace, and commissioners.

Recognition of Customary Marriages Act 120 of 1998 (Post-Commencement Requirements)

Statutory requirements for validity of customary marriages entered into after commencement: parties must be at least 18 years old, consent to marry under customary law, and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

Registration of Customary Marriages

The requirement to register a customary marriage within 3 months of the date of the wedding under the Recognition of Customary Marriages Act 120 of 1998.

Void Marriage

A marriage that fails to satisfy essential formal or material requirements, creating no legal bond or change of status between the parties from its inception.

Voidable Marriage

A marriage that validly exists with full legal consequences until set aside by a judicial decree of nullity due to a defect existing at the time of its conclusion.

Putative Marriage

A void marriage solemnised with proper formalities where one or both parties genuinely and mistakenly believed in good faith that the marriage was valid.

Recognition of Foreign Marriages

The rule that a foreign marriage is valid in South Africa if it complies with the formal requirements of the jurisdiction where it was concluded, does not violate South African law, and is not against public policy.