CHAPTER 6: VOID, VOIDABLE AND PUTATIVE CIVIL MARRIAGES

1 DEFINITION OF VOID MARRIAGES

A void marriage is not a marriage at all.
In principle none of the legal consequences of marriage attach to a void
marriage.
It is a marriage which has never come into existence in the eyes of the law.
It is as if the marriage had never been entered into.
A void marriage is always void regardless whether or not the court has made a declaratory order.
H/e, for the sake of legal certainty an application for a declaration of nullity is made to a court.
The court merely confirms the existing state of affairs by making a declaratory
order.
Court has no discretion whatsoever in this regard.
H/e the general rule that a void marriage cannot be made valid is subject to
certain statutory qualifications.
Eg: where a minor marries without the consent of the Min of Home Affairs, the
marriage is void.
H/e, ito the Marriage Act, the Min may ratify the marriage entered into by a girl
under the age of 15 years or a boy under 18 years who has not obtained the
written consent of the Minister. The marriage is ratified retrospectively, with
the effect that the marriage is valid.
In addition, Minister of Home Affairs can ratify a marriage solemnised by
someone who is not a competent marriage officer.

2 CONSEQUENCES OF A VOID MARRIAGE

Void ab initio marriage has no legal consequences.

It is as if the parties had never married.
It does not affect the status of the parties.
They each retain their legal status as an unmarried person.
Children born of void marriage are extra-marita
The general rule that a void marriage has none of the consequences of a valid
civil marriage must be qualified by the CL rules regulating putative marriages.

3 GROUNDS FOR NULLITY OF A VOID MARRIAGE

3.1 Non-compliance with the formal requirements necessary for a civil

marriage
Examples of situations where the formal requirements are not complied with
are the following:
(a) Marriage is solemnised by someone who is not a competent
marriage officer.
(b) Girl under 15 years or boy under 18 years marries without the
written consent of the Minister of Home Affairs.
(c) No witnesses are present at the marriage.

3.2 Non-compliance with the material requirements necessary for a civil

marriage
Examples of situations where the material requirements are not complied with
are the following:
(a) One of the parties is already married to someone else.
(b) One of the parties is mentally ill.
(c) One of the parties is below the age of puberty.
(d) Parties are related within the prohibited degrees of relationship.

4 DEFINITION OF VOIDABLE MARRIAGES

A voidable marriage is valid for all purposes unless & until the court grants a
decree of nullity on the grounds of a defect which already existed at the time
of the marriage ceremony.
A voidable marriage suffers from a less important defect at the time it was
entered into.
As such the defect is not critical enough to render the marriage void.
H/e, one or both of the parties can apply to court to have the marriage
annulled.
Until the marriage is annulled, a voidable marriage continues as a valid
marriage.
It therefore has all the usual consequences of a valid civil marriage.
If the marriage is not set aside, it continues as a valid marriage with all the
legal consequences of a civil marriage.

4
Children born of a voidable marriage are regarded as children born of married
parents.
Action for annulment can only be instituted by specific persons. Such person can renounce his right to do
so, either expressly or tacitly.
In this case the marriage becomes unassailable, iow, no longer voidable.

6 GROUNDS FOR SETTING ASIDE A VOIDABLE MARRIAGE

6.1 Minority

Already discussed

6.2 Stuprum (sexual intercourse before marriage)

Wife is pregnant with another man’s child at the time of the wedding without
her husband being aware of this. Husband can apply for an annulment of the marriage.
The fact that the husband himself had sexual intercourse with his wife before
the marriage does not affect his right to have the marriage annulled.
Criterion: Husband must be unaware at time of wedding that his wife was
pregnant by another man.
In other words, the real foundation for the voidability of the marriage is the
wife’s concealment of her stuprum.
If husband accepts the wife’s pregnancy and condones it, he loses the
remedy.
If husband cannot prove prenuptial stuprum, he can sue for a divorce.
Financial implications of an annulment and a divorce are very different.

6.3 Material mistake

Already discussed

6.4 Impotence

Inability to have sexual intercourse.

Must be unaware of the impotence of the other party at the time of entering
into the marriage.

Party cannot succeed if aware of the impotence or condoned it or if the

impotence is temporary or probably curable.

Impotent spouse may also apply for annulment provided that he was unaware
of the impotence at the time of entering into marriage
6.5 Sterility

Inability to procreate
Venter v Venter 1949 4 SA 123(W)
(i) Wife sterile but concealed this from husband.
(ii) Court rejected husband’s application to have the marriage set aside
because he did not allege that his wife had fraudulently concealed her sterility.
(iii) Court held that the action rested on the fraudulent concealment of sterility.

Van Niekerk v Van Niekerk 1959 4 SA 658(GW)

Court held that mere sterility renders the marriage voidable regardless
whether or not it was fraudulently concealed.

Venter’s case is preferred

Venter’s decision is supported by NCGLE v Minister of Home Affairs 2000 1
BCLR 39(CC

7 DEFINITION OF PUTATIVE MARRIAGES

When one or both the parties to a marriage marries being unaware of a defect
which renders their marriage void.
At the time of entering into the marriage the particular party(ies) must believe
in good faith that a valid civil marriage is being entered into.
Eg. man and woman marry each other without either of them being aware that
they are brother and sister.

7.1 REQUIREMENTS FOR A PUTATIVE MARRIAGE

Party(ies) must be unaware of the defect which renders their marriage void.

C.L. further required that all the formalities had to be complied with at the
solemnisation of the marriage In Bam v Bhabha, the matter was left undecided.
Submitted that defects with regard to solemnisation does not preclude a
marriage from being putative.

7.2 LEGAL CONSEQUENCES OF PUTATIVE MARRIAGES

Putative marriage has some of the legal consequences of a valid marriage as

long as at least one of the parties is bona fide.
As soon as both parties become aware of the defect, the marriage
automatically ceases to be a putative marriage.
Court cannot declare a putative marriage valid.
Court merely makes a declaratory order.

7.3 CHILDREN

Children are legitimate.

In Bam v Bhabha, the court left open the question regarding re legitimacy of
children.
When court is approached to make a declaratory order with regard to the
putative marriage, an application is simultaneously made for a declaration that
the children are legitimate.
Court therefore merely confirms the legitimacy of the children.
Both parents have guardianship over the children.
Court can make any order with regard to guardianship, contact and access
that is in the children’s best interests.

7.4 PROPERTY RIGHTS

The basic rules are:

No ANC, parties are treated as being married in COP where both parties are
bona fide at the time of entering into the putative marriage.
If only one party was bona fide, marriage is in COP if this is to the advantage
of the bona fide party.
f the parties entered into an ANC in which COP was excluded, the marriage
is deemed to be out of COP if this is in the interests of the bona fide party or if
both parties were bona fide.
The bona fide party may also enforce any benefit to him in terms of the ANC.
Mala fide party must return all benefits he received in terms of the ANC