CUSTOMARY MARRIAGES AND COMMUNITY OF PROPERTY

Since the promulgation of the Recognition of Customary Marriages Act, 120 of 1998, the position has changed in that customary marriages are now recognised in our law. A marriage that is valid in terms of customary law and was in existence at the time of commencement of the Act, is for all purposes recognised as a marriage in terms of the Act. In the case of a person being in more than one customary marriage, all valid customary marriages entered into before the commencement of the Act, are for all purposes recognised as valid marriages in terms of the Act.

This also means that customary marriages will fall under community of property. For a customary marriage not to fall under community of property, an ante nuptial contract must be in place.

What is a customary marriage?

  • It is a marriage entered into between a man and a woman, negotiated and celebrated according to the prevailing customary law in their community.
  • A customary marriage entered into before 15 November 2000 is recognised as a valid marriage, however, it will be regulated in terms of the specific traditions and customs applicable at the time the marriage was entered into.
  • A customary marriage entered into after 15 November 2000 is recognised as a valid marriage and will receive full legal protection irrespective of whether it is monogamous or polygamous.
  • A monogamous customary marriage will automatically be in community of property, unless it is stipulated otherwise in an ante nuptial contract.

In a polygamous marriage, the husband must apply to the High Court for permission to enter into such a marriage and provide the court with a written contract stating how the property in the marriages will be regulated (to protect the property interests of both the existing and prospective spouses).

Registering Customary Marriages

Customary marriages must be registered within three months of taking place. This can be done at any office of the Department of Home Affairs or through a designated traditional leader in areas where there are no Home Affairs offices.

The following people should present themselves at either a Home Affairs office or a traditional leader in order to register a customary marriage:

  • The two spouses (with copies of their valid identity books and a lobola agreement, if available).
  • At least one witness from the bride’s family.
  • At least one witness from the groom’s family.
  • And/or the representative of each of the families.

In the event that the spouses were minors (or one was a minor) at the time of the customary marriage, the parents should also be present when the request to register the marriage is made.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

DO I NEED AN ANTENUPTIAL CONTRACT BEFORE MARRIAGE?

An antenuptial contract is an important document that, under South African law, determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system.

An antenuptial contract offers a number of benefits:

  1. Preventing your intended marriage from automatically being in community of property
  2. Offering transparency in your relationship by recording the rights, duties and consequences (legal and proprietary) of your marriage
  3. Preventing unnecessary disputes with your spouse down the line

What is marriage in community of property

There is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors.

What is an Antenuptial contract?

A contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. An antenuptial contract must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

The accrual system

In a marriage out of community of property WITHOUT the accrual system, the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an antenuptial contract must be entered into to indicate that the marriage will be out of community of property.

A marriage out of community of property WITH the accrual system is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an antenuptial contract.

Conclusion

After marriage, the terms of the antenuptial contract become irrevocable unless they are amended by an order of the Supreme Court or, in some cases, by a notarial contract which must be registered in a deeds registry.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN I BREAK OFF AN ENGAGEMENT?

When a couple gets married they enter into a contract with each other. However, many ask whether or not the engagement is a contract, and if so, are there consequences for breaking it off?

What is an engagement?

In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

What ends an engagement?

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

What if the engagement is broken unexpectedly?

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he/she would have been had the engagement never been entered into. Furthermore, the innocent party may keep or claim back the engagement ring as part of costs incurred.

The court

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him/her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore, one should not be hasty when deciding to ask the big question.

Reference list:

  • Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).
  • Cloete v Maritz 2013 (5) SA448 (WCC).
  • Bull v Taylor 1965 (4) SA 29 (A).
  • Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.
  • A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.
  •  Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

GELDIGHEID VAN ‘N HUWELIKSVOORWAARDEKONTRAK

Die opstel en ondertekening van ʼn huweliksvoorwaardekontrak moet versigtig benader word. Benewens die feit dat die inhoud feitelik korrek moet wees, moet al die nodige bepalings daarin vervat word om die kontrak geldig te maak. Indien daar versuim om ʼn huweliksvoorwaardekontrak op te stel, mag dit lei daartoe dat ʼn huwelik as binne gemeenskap van goedere beskou word, selfs al was dit nie die partye se bedoeling toe die kontrak gesluit was nie.

Prokureurs en Notarisse word vertrou met die opstelling van ʼn huweliksvoorwaardeskontrak. Dit is ‘n kontrak wat deur die betrokke partye onderteken word om die huweliksbedeling te reguleer. As ‘n paartjie nie ‘n huweliksvoorwaardeskontrak teken nie, sal die huweliksbedeling binne gemeenskap van goedere wees. ʼn Huweliksvoorwaardeskontrak wys daarop dat die huweliksbedeling buite gemeenskap van goedere is. Die partye moet dus spesifiek stipuleer of hulle die aanwasbedeling op hul huwelik van toepassing wil hê al dan nie.

Die saak van B v B, soos in die Appèlhof voorgekom, bespreek die belang van die nodige bepalings in ʼn huweliksvoorwaardeskontrak wat tot die sluit van ‘n geldige kontrak lei. In hierdie geval was daar geen bepalings gestipuleer ten opsigte van enige van die bates wat in die huweliksvoorwaardeskontrak uiteengesit is nie. Die bates was ook behoorlik geïdentifiseer nie. In B v B het die hof gestel dat indien die bepalings van ‘n kontrak so vaag en onsamehangend is, en dit onmoontlik is om ‘n sinvolle konstruksie daarvan te maak, moet die kontrak as nietig beskou word as gevolg van vaagheid.

Ingevolge artikel 6(1) van die Wet op Huweliksgoedere kan ‘n party tot ‘;n voorgenome huwelik, wat nie die waarde in die kontrak uiteensit vir die doel om ʼn bewys te lewer van die bates van sy of haar boedel teen die tyd van die aanvang van die huwelik nie, dit binne ses maande van die sluiting van die huwelik in ‘n verklaring bevestig met behulp van ’n notaris. Ingevolge artikel 6 (4) van die Wet op Huweliksgoedere word die netto waarde van die boedel van ‘n gade as nul geag ten tye van die huwelik, indien die betrokke party nie die bewys betyds lewer nie. In effek is so ‘n kontrak geldig, maar dit sal beteken dat ʼn huwelik as binne gemeenskap van goederebeskou, aangesien daar niks van die oploping uitgesluit is nie.

As ‘n kontrak egter teenstrydig en onsamehangend is in ander opsigte, kan dit nie as ‘;n geldige kontrak nie beskou word nie, aangesien daar geen sekerheid is oor die betekenis van die kontrak en wat die partye beoog om te bereik nie. Dit beteken dat die kontrak nie die Hof in staat stel om uitvoering te gee aan die bedoeling van die partye ten die tye van die sluiting van die kontrak nie.

Die gevolg van so ‘n kontrak is dat die huweliksvoorwaardeskontrak nietig verklaar sal word as gevolg van onsamehangendheid en dat die huweliksbedeling ingevolge die Wet op Huweliksgoedere in gemeenskap van goedere sal wees.

Partye word dus aangemoedig om hul huwelikskontrakte deeglik te lees en seker te maak dat hulle die bepalings daarvan verstaan en dat die kontrak hul bedoelings uitbeeld, sonder enige verdere verduidelikings of bewyse.

B v B (952/12) [2014] ZASCA 14 (24 Maart 2014)

Wet op Huweliksgoedere 88 van 1984

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies. (E&OE)

COMMON LAW MARRIAGE IN SOUTH AFRICA

In South African law there is no such thing as a common law marriage. People simply believe that living together with another person for a continuous period of time establishes legal rights and duties between them. This is a common misunderstanding especially with young adults.

The only way to be protected in our law is to enter into a universal partnership agreement. Such an agreement clarifies the rights and duties of the partners. The agreement will determine what would happen to property and assets of the couple if they should decide to separate. The agreement is, however, not enforceable in so far as third parties are concerned. Only a valid marriage is enforceable against third parties. It is important to note that partners can sometimes be jointly and severally liable if they acted within the scope of the partnership. An agreement such as this will be legally binding as long as it contains no provisions that are immoral or illegal. If there is no agreement on the dissolution of a universal partnership agreement, a party would only be entitled to retain those assets which he or she has purchased and owns and further would be entitled to share in the assets proportionately in terms of the contribution which they have made to the partnership.

To prove the existence of such a partnership it must be shown that:

  • The aim of the partnership was to make profit.
  • Both parties must have contributed to the enterprise.
  • The partnership must operate to benefit both parties.
  • The contract between the parties must be legitimate.
  • There must be valid consent.
  • There is an intention to create a legally binding agreement.

Where there is no express agreement, a tacit agreement may be proved if it is found that it is more probable than not that such an agreement had been reached between the parties at the time of cohabitation.

Because the existence of a universal partnership is somewhat difficult to prove, and it may not be a claim that you wish to have to make or defend, it is advisable to consider entering into a contract that spells out how property should be dealt with on termination of the relationship by death or otherwise. Such a contract would provide some certainty for cohabitees regarding the division of assets and settlements of liability on termination of the relationship.

Some of the consequences of the absence of a legal ground between parties in such relationships are:

  • No exemption from donations tax in respect of donations between them.
  • Cohabitees do not benefit from the laws relating to the exemption from estate duty of bequests to spouses.
  • There is no reciprocal obligation of maintenance.
  • Cohabitee is not a recognised claimant if his/her partner dies intestate.
  • There is no right to property or assets that belong to cohabitee.
  • There is no reciprocal duty to contribute to household necessities.

The Domestic Partnerships Bill of 2008 is still in its formulation stage and it remains to be seen how it is to be implemented. In the current constitutional dispensation it is unlikely that a partner will be left in despair, taking into account the Domestic Partnerships Bill.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)

VALIDITY OF ANTENUPTIAL CONTRACTS

One must be careful when drafting and signing an Antenuptial Contract. Aside from ensuring that the contents is all correct, one must also ensure that all the necessary provisions are contained therein to make the contract valid. The consequences of neglecting to do so may result in a marriage in community of property even though the parties had no intention of this at the time of their marriage.

Attorneys are often trusted with the task of drafting an Antenuptial Contract. This is a contract, which one signs to regulate the property regime of a marriage. If a couple does not sign, an Antenuptial Contract then the marital property regime will be that of in community of property. The presence of an Antenuptial Contract means that the marital property regime is that of out of community of property and the parties must specifically stipulate whether they would like the accrual system to apply to their marriage or not.

The importance of ensuring that all the necessary provisions are contained in the Antenuptial Contract to result in a valid contract was discussed in the 2014 Supreme Court of Appeal Case of B v B[1]. In this case, no values were stated in respect of any of the assets listed in the Antenuptial Contract and they were also not properly identified. In B v B the court stated that if the terms of a contract are so vague and incoherent as to be incapable of a sensible construction then the contract must be regarded as void for vagueness.[2]

According to Section 6(1) of the Matrimonial Property Act[3] ,a party to an intended marriage which does not, for the purpose of proof of the value of his or her estate at the time of the commencement of the marriage, declare the value in the contract, then he or she may do so within six months of the marriage in a statement attested to by a notary. If this is not done, according to Section 6(4) of the Marital Property Act, the net value of the estate of a spouse is then deemed to be nil at the time of the marriage. In effect, such a contract is valid but it will effectively render the marriage in community of property since nothing was excluded from the accrual.

However, if a contract is contradictory and incoherent in other respects then it cannot be seen as a valid contract since there is no certainty as to the meaning of the contract and what the parties seek to achieve. This means that the contract would not embody terms that would enable to court to give effect to the intention of the parties at the time the contract was concluded.

The result of such a contract is that the Antenuptial Contract would be void for vagueness and that the marital property regime would be the default position according to the Marital Property Act, which is in community of property.

Therefore, parties are encouraged to read their contracts thoroughly and ensure that they understand the terms thereof and that the contract embodies their intentions without any further explanations or evidence.

[1] (952/12) [2014] ZASCA 14 (24 March 2014).

[2] B v B (952/12) [2014] ZASCA 14 (24 March 2014) par 7.

[3] 88 of 1984.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

INTERNATIONAL LOVE MEETS THE LAW

A South Africa citizen “x” decides that he is going to study in England after leaving school. During this time abroad he meets the love of his life “y”, a British citizen. Both parties decide that they want to marry each other and are now unsure if the marriage will be valid once they return back to South Africa.

The abovementioned marriage and/ or relationship adequately demonstrate the need for private international law. Men and women of different domiciles and nationalities may fall in love and marry in the country where they happen to reside. Generally speaking, the formal validity of a marriage is determined by the law of the place where the marriage was solemnized. This is based on the common law doctrine of the law of the country were the marriage was solemnized ( lex loci celebrationis).

This rule is also subject to the  fraud of the law (fraus legis) doctrine that will prevent parties from deliberately solemnizing their marriage elsewhere to escape some essential requirements of the law of the place of a party’s dwelling house (lex domicilii). Kassim v Ghumran & another 1981 Zimbabwe LR 22, may be considered more fully to illustrate the principle of evasion. Here Ghumran and Kassim had eloped from Zimbabwe to Malawi in order to marry. Kassim was only 15 years old and the consent of her parents, which was not obatined, was required for her marriage under the law of Zimbabwe. Kassim’s father sought an order declaring that the Malawian Marriage is void. The court held that where one or both parties were

domiciled in the area of the court and had their marriage deliberately solemnized elsewhere to escape an essential requirement of the lex domicilii acted in fraudem legis.

The last exception to the lex loci celebrationis is the principle of public policy. The marriage will be against public policy if it offends fundamental moral principles of that society. Since the marriage relationship is one of the fundamental institutions of our society, it follows, none the less, that public policy will raise its head here. It does so primarily in two broad areas; marriages tainted by incest, want of age, or lack of consent and polygamous marriages, especially before the recognition of customary marriages is South Africa. The consensus seems to be that the union of siblings (whether of half or full blood) and the union of any blood relatives in the direct line will be against public policy (contra bonis mores).

Therefore their marriage will be valid in South Africa if they complied with the abovementioned international private law principles and that the marriage was legally conclude in accordance with the laws of England. It is also important to note that the legal consequences of the marriage will be governed by different international private law principles and the validity of the marriage will be determined according to the abovementioned principles.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

FAST DIVORCES IN CAPE TOWN

Divorces can be heartbreaking, painful, costly and time consuming when parties cannot reach a settlement between themselves.

However, all hope is not lost. Many young couples choose to get married in terms of an antenuptial contract, which states what each party declared to be excluded from the matrimonial estate and will remain each party’s exclusive property. If a couple does not have an antenuptial contract when they choose to go their separate ways, but already have a settlement in mind, whether it be with regard to property or children, they have the option of entering into a Consent Paper.

A Consent Paper states the terms on which the parties choose to divide their property or items that they have accrued over time. A Consent Paper should also deal with the maintenance, child care, medical care and any other issues that can arise with regards to minor children. A Consent Paper can be edited many times before it is endorsed by the Court, as long as both parties are in agreement. Once the parties are in agreement and summons has been served on the Defendant, the parties can obtain a final divorce order as soon as the following week. It is important to take note that where there are minor children involved, the Consent Paper must first be endorsed by the Family advocate in order to make sure that the arrangements regarding the care of such minor children are in line with the provisions of the Children’s Act. If there aren’t any issues with the arrangements as set out in the Consent Paper the Family advocate usually only takes about two days to endorse the Consent Paper.

A divorce order incorporating the Consent Paper may be obtained in the Regional Court or the High Court. The Cape Town High Court has jurisdiction over the Western Cape and is a speedy court when it comes to divorce matters that have been settled. The parties can choose their own divorce date in the Cape Town High Court provided that such date falls on a court date. This notice serves as booking for that date and as notice to the Defendant of such date.

One or both of the parties have to be present in court on the date as set out in the Notice of Set Down. However, it is advisable to use the services of an advocate in order to make the process as efficient and painfree as possible.

A divorce is never pleasant, but one should remember that once upon a time, the same parties that are asking for a divorce now, made promises to each other to take care of each other for better or for worse. Divorces don’t need to cost many years and tears, it can be finalised amicably and quickly. Even though the marriage itself was not meant to be, the memories will last forever.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

A PROMISE TO MARRY

In this article the legal consequences of breaking off an engagement will be discussed. Is it a contract, and if it is, can you institute a claim for damages due to a breach of this contract?

In order to enter into a valid engagement to be married the following requirements must be met:

  • Both parties must have the capacity to act, which generally means that parties must be older than 18 years or if they are minors, that they have the necessary consent from their guardians.
  • Both parties must voluntarily consent to the engagement. A material mistake, such as the identity of either of the parties, will render the engagement void. There must also be no misrepresentations made by either of the parties; in other words, where it would have resulted in the contract not being concluded, had the other party known the truth.
  • Both parties must be permitted by law to marry each other. For example, you may only be engaged to one party, unless a polygamous engagement applies under African Customary Law.
  • One may not marry a sibling.

It is important to note that there is no law in South Africa that requires an engagement before marriage.

Once a date for the marriage has been determined, there is a reciprocal duty to marry on that date, unless the date is changed by mutual agreement. Further, if no date has been determined, it is presumed that the marriage will take place within a reasonable time. Nevertheless, either of the parties may terminate the engagement, which may or may not attract a claim for damages or return of gifts.

An engagement can be terminated in the following ways:

  • Marriage
  • Death of either parties
  • Mutual agreement
  • Withdrawal of parental consent
  • Breach of promise
  • Termination by one party that is justified and based on sound reasons

It is important to establish whether there is a just cause for cancellation. If there is, the engagement may be validly terminated. A reason such as sterility or criminal activity, if it was only brought to the attention of the other party after agreeing to marry, may provide enough grounds to break off the engagement. If both parties agree to terminate the engagement, all gifts given in anticipation of the marriage, including the engagement ring, must be returned.

If one party breaches the promise to marry without justifiable reasons, the innocent party can, according to our law, institute a claim for damages, provided that the losses were within the contemplation of the parties. The innocent party can claim expenses incurred in anticipation of the wedding, thus placing the innocent party in the financial position he or she would have been had the engagement never been entered into. Further, the innocent party may keep or claim back the engagement ring as part of costs incurred.

In the case of Van Jaarsveld v Bridges, the court decided that a party cannot successfully institute a claim for prospective losses on the basis of a breach of promise to marry, because an engagement is not an ordinary contract in the context of contractual damages and should therefore not be placed on a rigid contractual footing. This means that a party may not institute a claim for damages placing him or her in the position he would have been had they gone through with the marriage. Previous court judgements indicate that compensation will be awarded at the discretion of the court and that each case must be evaluated on the basis of its individual circumstances.

In conclusion, it is important to note that a promise to marry is an agreement which attracts legal consequences; therefore one should not be hasty when deciding to ask the big question.

Bibliography:

Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA).

Cloete v Maritz 2013 (5) SA448 (WCC).

Bull v Taylor 1965 (4) SA 29 (A).

Georgina Guedes, 23 October 2013, Mail and Guardian, “Five fallacies about engagement rings”.

A Guide to Divorce and Separation in South Africa, “Engagement and the Law”.

Ronald & Bobroff, “The engagement”.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

ANNULMENT OF A MARRIAGE

Consent is an essential element of a valid marriage and the parties to a marriage must confirm before the marriage officer during a civil ceremony that they voluntarily consent to marry each other.[1] There are certain circumstances where it can be said that consensus was not present, and this will be discussed below.

Six months after John marries Laura they decide that they want to start a family. John finds out from the doctors that he is sterile and cannot have children. Laura is distraught and contacts her attorney, saying that she would never have married John if she had known that he could not have children.

Laura’s attorney explains to her the circumstances in which consensus will either be lacking or materially deficient, in which case the marriage can be annulled (set aside).

Firstly, a material mistake will result in a lack of consensus. A material mistake is limited to where there is a mistake as to the identity of your spouse or a mistake regarding the actual act of marriage in that you did not understand that the ceremony in which you took part resulted in marriage with the other party. In these circumstances there is uncertainty as to whether the marriage never came into existence or if it can be set aside. One may also make mistakes regarding the personal characteristics of your spouse. This may only be a ground on which the validity of the marriage can be challenged if these are material characteristics. The decision whether a mistake regarding a personal characteristic is material or not rests with the Court.[2]

Secondly, a misrepresentation by your spouse may justify the setting aside of a marriage if that misrepresentation relates to a material aspect of the marriage. In the scenario above, if John was aware of the fact that he was sterile before entering into the marriage with Laura, then Laura could attempt to prove that she was misled and state that if she was aware of John’s sterility, she would never have married him. However, if John was unaware that he was sterile, this is not a sufficient ground on which to set a marriage aside.[3]

Thirdly, if one of the parties was unduly influenced or placed under duress to marry the other party by any person including but not limited to the party to which they have been married, then there is no consensus and the marriage can be set aside.[4]

Fourthly, impotence, being the inability to have sexual intercourse, may be a valid ground for setting aside a marriage, but this will not be so if it was reasonably foreseeable at the time that the marriage was entered into that sexual intercourse wouldn’t take place based on factors such as age or illness.[5]

Fifthly, if the scenario above was altered to read that Laura was pregnant with another man’s baby at the time that she married John then he could apply to have the marriage set aside on the basis that this state of affairs would most likely result in an unhappy marriage. He may only make this application if he was unaware of the pregnancy at the time that they were married and if he has not waived his right to have the marriage annulled.[6]

Bibliography:

  • Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed., 2009, 92 – 94.
  • Heaton J, South African Family Law 3rd ed., 2010, 37.
  • Marriage Act, 25 of 1961.

[1] Section 30(1) of the Marriage Act, 25 of 1961.

[2] Robinson JA, Human S, Boshoff A, Smith BS, Carnelley M, Introduction to South African Family Law, 4th ed. (2009) 92.

[3] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[4] Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 93.

[5] Heaton J, South African Family Law, 3rd ed. (2010) 38; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

[6] Heaton J, South African Family Law 3rd ed. (2010) 37; Robinson JA, Introduction to South African Family Law, 4th ed. (2009) 94.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.