Understanding marriage legalities in South Africa is paramount to the couple and their families. Details on what makes a union valid and invalid explored.
There are hundreds, and in most cases, thousands, of marriages registered every year in South Africa, per Stats SA. Families and friends get together during the union between two adults, and this brings unity and strengthens relationships. It also promotes cultural diversity in the country.
Marriage, a sacred institution celebrated across diverse cultures, holds a unique and complex legal status in South Africa.
The validity of a marriage is not merely a matter of cultural or personal significance; it is deeply intertwined with legal frameworks and regulations.
In this article, JanaTribe will delve into the multifaceted aspects that determine the validity or invalidity of marriage in South Africa, uncovering the legal intricacies that govern this fundamental institution.
Legal Foundations of Marriage in South Africa
Marriage Act of 1961: At the core of South Africa’s marriage regulations lies the Marriage Act of 1961. This legislation governs the solemnization and registration of marriages, setting out the legal requirements and procedures for a marriage to be recognized as valid. Understanding the provisions of this act is essential for anyone seeking to enter into a legally recognized marital union.
Types of Marriages Recognized: The Marriage Act recognizes various types of marriages, each with its own set of legal requirements. These include civil marriages, customary marriages, civil unions, and religious marriages. The distinctions between these forms of unions are crucial in determining the validity of a marriage based on the chosen ceremony and adherence to legal stipulations.
What makes a marriage valid?
The validity of a marriage is generally determined by the law of the place where the marriage was performed or celebrated.
A valid marriage, according to SJ Family Law, is one that has undergone the legal requirements. A valid marriage may be entered into only by parties who are “capable of making” the contract of marriage. Generally, the parties must have the capacity to enter into any ordinary civil contract, such as being at least 18 years of age, of sound mind, and not deprived of their civil rights. Factors in a valid marriage include:
1. Consent and capacity
One fundamental requirement for a valid marriage in South Africa is the mutual consent of both parties entering into the union. Understanding the nuances of consent and capacity is vital to ensuring the legitimacy of the marital contract.
Similarly, in Ghana, the consent of the bride is sought when her father or an elder in her family asks her three times whether they should warmly receive all of the dowry brought before them. She usually has to answer three times. This also shows she wasn’t forced into marriage.
2. Consent to the marriage of a minor
Additionally, both individuals must have the legal capacity to marry, meaning they are of sound mind and have reached the age of majority.
If you or your partner are a minor (younger than 18 years) in the care of either your respective parents or a legal guardian, only the parent’s or guardian’s written consent (Form DHA-32) is necessary for you to obtain a marriage certificate.
If a parent whose consent is legally required but either cannot be found to grant consent or is legally incompetent to do so, then an application may be made to a Commissioner of Child Welfare for consent to the marriage.
If your parents and/or a Commissioner of Child Welfare refuse to grant consent for your marriage, you may then apply to a judge of the High Court for consent. The judge will not grant consent unless there is sufficient evidence that the marriage is in the interest of the minor and that prior consent has been unreasonably refused.
In addition to getting consent from the parents or guardians, boys under the age of 18 and girls under the age of 16 may also be required to seek the consent of the Minister of Home Affairs. The Minister may, on application, condone a marriage that required his/her consent but was contracted without such consent.
3. Solemnization by a marriage officer
The involvement of a qualified marriage officer is a prerequisite for a valid marriage. These officers, appointed under the Marriage Act, play a crucial role in officiating marriages and ensuring that the ceremony complies with legal standards. The choice of a marriage officer, whether from the Department of Home Affairs or a religious institution, has implications for the validity of the marriage.
4. Legal formalities and registration
Compliance with legal formalities during the marriage ceremony is imperative. This includes the exchange of vows, the presence of witnesses, and the signing of the marriage register. Failure to adhere to these formalities may render the marriage invalid. Following the ceremony, prompt registration with the Department of Home Affairs is essential to legally record the union.
What makes customary marriages valid in South Africa?
Customary marriages are considered valid when they have undergone the traditional rules and rituals. Recognition of cultural diversity can be done by:
1. Customary marriages act
Acknowledging the rich cultural diversity in South Africa, the Customary Marriages Act of 1998 recognizes the validity of marriages conducted according to the customs and traditions of specific communities. Understanding the provisions of this act is crucial for those entering into customary marriages, as it outlines the legal requirements for recognition.
2. Negotiation and lobola
Customary marriages often involve unique rites such as lobola, a customary practice of negotiation and payment between the families of the bride and groom. The observance of these customs, including the payment of lobola, contributes to the validity of the marriage. However, striking a balance between cultural traditions and legal requirements is essential for a marriage to be recognized.
What makes a marriage invalid?
Null, non-existent, or void are other terms for something invalid. There are reasons for invalid unions in South Africa, and those who are stuck in one suffer difficulties and legal barriers.
1. Prohibited Relationships
Relationships lead to marriages, and certain types are considered prohibited.
Understanding the scope of prohibited relationships is vital to avoiding legal challenges to the validity of a marriage, DHA advises.
The law states that certain categories of people may not marry. These include:
- Minors, unless the prescribed consent to the marriage has been given.
- People who are already married. Bigamy is a punishable offense in South Africa. Such marriages are also null and void under South African law
- In the columns below, a man may not marry any person mentioned in column 1; and a woman may not marry any person mentioned in column 2:
| 1 | 2 |
| Mother Daughter Father’s mother Mother’s mother Son’s daughter Daughter’s daughter Sister Wife’s mother Wife’s daughter Father’s wife Son’s wife Father’s father’s wife Mother’s father’s wife Wife’s father’s mother Wife’s mother’s mother Wife’s son’s daughter Wife’s daughter’s daughter Son’s son’s wife Daughter’s son’s wife Father’s sister Mother’s sister Brother’s daughter Brother’s daughter’s daughter Sister’s daughter Sister’s daughter’s daughter Sister’s son’s daughter | Father Son Father’s father Mother’s father Son’s son Daughter’s son Brother Husband’s father Husband’s son Mother’s husband Daughter’s husband Father’s mother’s husband Mother’s mother’s husband Husband’s father’s father Husband’s mother’s father Husband’s son’s son Husband’s daughter’s son Son’s daughter’s husband Daughter’s daughter’s husband Father’s brother Mother’s brother Brother’s son Brother’s son’s son Sister’s son Sister’s son’s son Sister’s daughter’s son |
2. Lack of consent or capacity
If one or both parties lack the mental capacity to consent to the marriage at the time of the ceremony, the marriage may be declared invalid. Cases of forced marriages or individuals lacking the legal capacity to marry due to mental incapacity may fall into this category.
A marriage contracted without the legally required consent of the parents or guardian can be made void, in other words, declared null and void by the High Court at the request of the parents or guardian:
- before the minor turns 21 and
- within six weeks of the date on which the marriage first came to their knowledge
If you are a minor, you may apply for the dissolution of the marriage:
- before you turn 21, or
- within three months after turning 21.
3. Non-compliance with legal formalities
Failure to comply with the legal formalities prescribed by the Marriage Act, such as the absence of a marriage officer, witnesses, or the signing of the marriage register, can result in the invalidity of the marriage. Legal oversights during the ceremony or registration process may lead to significant legal consequences.
4. Fraud or Duress
Marriages entered into under duress or through fraudulent means may be subject to invalidation. Instances of one party deceiving the other or marriages forced under coercion raise ethical and legal concerns, potentially rendering the union null and void.
Annulment vs Divorce: What’s the Difference?
Annulment and divorce are both legal processes, but they serve different purposes. Let’s look at what it means to get an annulment or a divorce to help us understand the aim of each process.
What is an Annulment?
An annulment essentially declares a marriage null and void, as if it never existed. This declaration implies that, from a legal standpoint, the union was invalid from the beginning. There are two categories of annulment: void or voidable marriages.
Void Marriages
A void marriage in South Africa is legally invalid from the start. It includes scenarios like one party being already married, underage marriages without parental consent, or incestuous relationships.
Unlike voidable marriages, void marriages require no formal annulment since they were never legally recognized. However, obtaining a declaration of annulment is a common practice to prevent potential legal issues in the future.
Voidable Marriages
Unlike void marriages, voidable marriages were initially legal, but you can get them invalidated by a judge. Reasons for voidability include duress, impotence, fraud, misrepresentation, or if the woman is pregnant by another man at the time of the marriage. To annul a voidable marriage in South Africa, a party must prove the presence of one of these conditions through a hearing in front of a judge.
When can you Apply for an Annulment?
Annulments are typically granted in specific circumstances. Grounds for annulment often include situations where there was a lack of consent, one party was underage, or there was a fraudulent misrepresentation at the time of marriage. A more detailed list includes the following:
Void Marriages:
- Informal Ceremonies: Marriages are conducted without following the legal formalities outlined in the Marriage Act 25 of 1961.
- Improper Officiation: Marriages that were officiated by someone who is not properly appointed as a marriage officer.
- Witness Absence: Marriages celebrated without the presence of witnesses.
- Prohibited Relationships: Marriages between closely related individuals (e.g., siblings, parents, and children) are considered void.
- Bigamy: Marriages where one party is already married to another person.
- Minor Marriages: Marriages by a female under 15 or a male under 18 without the consent of the Minister of Home Affairs.
- Insanity: Marriages by an insane person.
- Specific mistakes: Confusion about the nature of the ceremony (e.g., thinking it was an engagement instead of a marriage) or errors related to the identity of one or both parties in the union.
Voidable Marriages:
- Minor’s Consent: A minor can seek annulment if married without parental consent within three months of becoming an adult.
- Duress: A marriage entered into under threats, force, or intimidation is voidable.
- Fraud: If one party misled the other through misrepresentation.
- Pregnancy by Another: If the woman is pregnant by a third party at the time of the marriage without the husband’s knowledge.
- Impotence: Either party can apply for annulment if one is impotent at the time of marriage.
It’s crucial to note that annulments are not available to everyone and are usually reserved for cases where the marriage should be considered legally invalid.
What is a Divorce?
Divorce, on the other hand, is a more common and widely applicable legal process. This process is outlined in the Divorce Act 70 of 1979.
Understanding the grounds for divorce, property division, and custody arrangements is crucial for individuals seeking to end a legal marriage.
When can you Apply for a Divorce?
Divorce proceedings, when conducted under the law, result in the termination of a valid marriage.
You can seek a divorce of a valid marriage for various reasons, including:
- Irretrievable Breakdown: You have undergone a continuous one-year separation with no chance of reconciliation.
- Infidelity: One partner cheated on the other.
- Criminal Activity: One partner was declared a habitual criminal undergoing imprisonment.
- Mental Health: One of the partners has been in a mental health facility for at least two years without expecting recovery.
- Prolonged Unconsciousness: One of the partners has been unconscious for at least six months with no anticipated recovery.
Unlike annulments, divorces do not carry the same stringent criteria, making them a more accessible option for those seeking to end their marriages.
Conclusion
In conclusion, the validity of a marriage in South Africa is a multifaceted concept governed by legal statutes, cultural considerations, and individual circumstances. From the legal requirements outlined in the Marriage Act to the recognition of diverse cultural practices in customary marriages, understanding the intricacies is paramount.
Moreover, awareness of the grounds for invalidity and the legal processes for dissolution or annulment ensures that individuals navigate the legal landscape of marriage with clarity and compliance. In a country where cultural diversity and legal frameworks converge, a comprehensive understanding of what makes a marriage valid or invalid is essential for all who embark on the journey of matrimony.
