Family Law LWFL121

Chapter 6
F R A NCO IS ST E E NK A MP
(PIHE DURBANVILLE CAMPUS)
FRANCOIS.STEENKAMP@PEARSON.COM

MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com

Void, voidable and putative marriages
• Read scenario on p. 251
• What do you think?
• 1. Is the marriage between Peter and Susan a valid marriage?
• 2. Can Peter and Susan decide to stay in the marriage because they love each
other very much?
• 3. Is the fact that Peter and Susan got married in good faith a factor which the
court should consider?
• What does the law say?
Void, voidable and putative marriages
• Void marriages:
• Wille’s Principles of South African Law: ‘A marriage which is null and void ab initio
is not a marriage at all; in principle none of the legal consequences of marriage
attach to it’
• A void marriage is one which has never come into existence in the eyes of the law
• It is as if the parties had never entered into a marriage
• A void marriage is void, regardless of whether or not a court makes a declaration
to this effect
• For the sake of legal clarity/certainty = An application for a declaration of nullity
is usually made to court (the court simply confirms the existing state of affairs
with a declaratory order)
• Ex parte Oxton = It was held that the purpose of a declaratory order is to place on
record the fact that the marriage entered into by the parties was void ab initio
and gave rise to no legal consequences
Void, voidable and putative marriages (cont.)
• The courts have no discretionary power to declare a void marriage valid
• A void marriage can be made valid under certain conditions (statutory
qualifications)
• E.g. Minister of Home Affairs my retrospectively grant written permission and
thereby render a void marriage, valid
• Legal consequences of a void marriage:
• A void marriage has no existence; it is as if the couple had never married
• None of the usual legal consequence arise
• Each of the parties retains his or her legal status as an unmarried person
• The common law rules regarding putative marriages are an exception to the rule
that void marriages have none of the legal consequences of a civil marriage (to
be discussed later)
Void, voidable and putative marriages (cont.)
• A civil marriage which is void ab initio (from the outset) does not effect the status
of the parties, or confer any of the consequences of a civil marriage on the
parties, or their children
• No matrimonial property system operates as between the parties
• The reciprocal duty of support does not operate between them
• They do not inherit intestate from one another
• Their children are born of unmarried parents (‘illegitimate’)
• They are free to enter into another civil marriage, a civil union, or customary
marriage etc.
• Nullity of a void marriage is absolute and may be raised by either party, or a third
party (even after death, retrospectively)
• A bona fide party to a void civil marriage may institute a delictual action for
satisfaction against the other party to a void civil marriage (depending on the
grounds for the action, e.g. fraudulent misrepresentation)
Void, voidable and putative marriages (cont.)
• Grounds for nullity of marriage:
• The grounds on which a marriage is void are based on the requirements for a civil
marriage
• A marriage is void if the parties to the marriage do not have the capacity to marry
(absolute capacity to marry), or do not have the capacity to marry each other (relative
capacity to marry)
• For example:
• 1. One of the parties to the marriage is below the age of puberty
• 2. One of the parties to the marriage was mentally ill, or mentally disabled, at the time of
the wedding
• 3. The parties are related to each other within the prohibited degrees of relationship
• 4. One of the parties to the marriage is already married (either in terms of a civil
marriage, or a customary law marriage), or is in a civil partnership in terms of the Civil
Union Act)
Void, voidable and putative marriages (cont.)
• The following are examples of non-compliance with formal requirements which
render a civil marriage void:
• 1. The civil marriage was solemnised by someone who is not a competent
marriage officer
• 2. A girl below 15 years of age, or a boy below 18 years of age, enters into a civil
marriage without having obtained the written consent of the Minister of Home
Affairs
• 3. No witnesses are present at the civil marriage
Void, voidable and putative marriages (cont.)
• The following are examples of situations in which a civil marriage is void because
the material requirements are not met:
• 1. The parties are of the same sex (civil marriage)
• 2. One of the parties is already a party to another civil marriage, a customary
marriage, or a civil union with someone else
• 3. The parties are related to each other within the prohibited degrees of
relationship
Void, voidable and putative marriages (cont.)
• A marriage will also be void if it does not comply with important formal
requirements for the conclusion of a civil marriage as set out in the Marriage Act
or the Civil Union Act
• Examples of non-compliance with formal requirements that render a marriage
void are:
• 1. The marriage was solemnised by someone who is not a competent marriage
officer
• 2. The marriage was not solemnised in the presence of two competent witnesses
• Lee and Honoré suggest that a marriage should only be void on the grounds of
noncompliance with formalities:
• I.e. ‘where some material formality has not been complied with’
• E.g. the personal presence of both parties to the marriage, a competent
marriage officer, and witnesses
Void, voidable and putative marriages (cont.)
• These scholars suggest that other formalities in the Marriage Act/Civil Union Act
are less important and should be regarded as immaterial (inconsequential)
• E.g. those aimed at ensuring a ceremonious atmosphere (e.g. place of
solemnisation, the giving of the right hand etc.)
• Some of the formal requirements are so important that non-compliance will
render the marriage void (e.g. no witnesses)
• Some other formalities are less important e.g. Ex parte Dow (wedding in garden)
Void, voidable and putative marriages (cont.)
• Voidable marriages:
• A voidable marriage is a marriage (unlike a void marriage, which is not)
• According to Wille’s Principles of South African Law: ‘A voidable marriage is valid for all
purposes, unless and 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 void marriage = Suffers from a critical defect (so serious that the marriage does not
come into existence)
• A voidable marriage = Suffered from a less important defect at the time it was entered
into (defect not critical enough to render the marriage automatically void)
• However, because of the defect, one or both parties (or a third party such as a guardian),
can apply to the court to have the marriage annulled/voided (set aside)
• Until annulled, a voidable marriage continues as a valid marriage, and has all the legal
consequences of a valid civil marriage
• If the marriage is not set aside, it continues as a valid marriage
Void, voidable and putative marriages (cont.)
• Section 11(1) of the Marriage Act and Section 4 of the Civil Union Act, provide
that a civil marriage can only be solemnised by a marriage officer
• However, in certain circumstances the marriage can be validated by the Minister
of Home Affairs
• Read the ‘Obiter’ box on p. 253
• Notice the differences between a divorce and a voided/annulled marriage
• An annulment is not a divorce by another name
Void, voidable and putative marriages (cont.)
• Legal consequences of voidable marriages:
• A voidable marriage is a valid marriage in all respects until it is set aside by the
court
• If neither of the parties apply for annulment = The marriage remains in force = It
will then have all the legal consequences of a valid civil marriage
• E.g. there will be intestate succession between spouses (if no will(s) exist)
• The marriage will be presumed to be in community of property (if no antenuptial
contract exists)
• Decree of annulment = ‘Cancels’ the marriage
• A decree of annulment is retroactive/retrospective
• Legal position = The parties are in the same position as if the marriage never took
place
Void, voidable and putative marriages (cont.)
• Voided/annulled marriage = The economic consequences of the marriage are also
voided
• E.g. if the marriage was treated as in community of property before = After
annulment such economic consequences are suspended
• Parties are returned to the same financial position that they would have been in
if they had never married
• There is no sharing of marital property
• What about transactions with 3rd parties?
• Third parties who entered into legal transactions with the parties to a voidable
marriage are protected (transactions completed in good faith reliance before the
annulment) – See quote on p. 254
• The status of children born to a voidable marriage is not altered (Section 39 of
Children’s Act) = Such children are regarded as the children of married parents
Void, voidable and putative marriages (cont.)
• An action for the annulment of a voidable marriage can only be instituted by
specific people (see list on next slide)
• A person entitled to have a marriage set aside can also renounce his or her right
to do so (either expressly or tacitly)
• In such a case, the marriage becomes ‘unassailable’ = It is no longer voidable
Void, voidable and putative marriages (cont.)
• Grounds for voidability:
• See pp. 254 – 255
• 1. Minority
• 2. Material mistake
• 3. Duress
• 4. Concealed existing pregnancy (but not stuprum = extra-marital sexual
intercourse with a 3rd party)
• 5. Impotence
• 6. Sterility
• 7. Undue influence (e.g. by a father, uncle, friend etc.)
Void, voidable and putative marriages (cont.)
• See ‘Using the Law’ box on p. 255
• Venter v Venter 1949 (4) SA 123 (W) (In your casebook)
• The court held that if one of the parties fraudulently concealed his or her sterility, the
other party can have the marriage annulled (i.e. it is voidable). Common law authors do
not clearly distinguish between sterility and impotence. Roman-Dutch law regarded
sterility accompanied by impotence = As not a ground for annulment
• Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW) (In your casebook)
• The court held that the mere fact of sterility renders the marriage voidable, regardless of
whether or not it was fraudulently concealed, provided that the procreation of children
was an express or implied object of the particular marriage
• The approach taken in Venter is preferred = It is not the mere fact of sterility, but its
fraudulent concealment that founds the action for annulment (makes it voidable) (See
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs where the
Constitutional Court confirmed this view)
Void, voidable and putative marriages (cont.)
• Putative marriages (reputed to be, considered to be):
• A putative marriage is a void marriage
• It suffers from a critical defect (e.g. brother and sister enter into a civil marriage,
unaware that they are related within the prohibited degrees of blood
relationship)
• Such a marriage cannot be saved or transformed into a valid marriage
• However, such a marriage may be deemed to be a ‘putative marriage’ if one or
both the parties to the marriage was unaware of the critical defect rendering the
marriage void at the time of the wedding
• Lee & Honore: ‘If the parties to a void ‘marriage’ went through the appearance of
a marriage ceremony and one of them did so in the bona fide belief that they
were entering into a valid marriage, the relationship between them is a putative
marriage’
Void, voidable and putative marriages (cont.)
• Requirements for a putative marriage:
• A void marriage will only be treated as a putative marriage if one or both parties
had a bona fide belief that they were entering into a valid civil marriage
• I.e. one or both parties had to be unaware of the defect which rendered the
marriage void
• Common law = Marriage had to strictly comply with the prescribed formalities
for a civil marriage
• Modern law = Courts take a more relaxed approach
• A marriage can still be deemed a putative marriage even if the formal
requirements are not strictly complied with
• However, the marriage should have been contracted openly and lawfully,
together with the requisite legal rituals and ceremonies
Void, voidable and putative marriages (cont.)
• Consequences of a putative marriage:
• A putative marriage remains a void marriage, and the court has no discretion to
declare it valid
• However, should the court deem a marriage a putative marriage, certain legal
consequences will nevertheless arise
• Children:
• Children born of a putative marriage are regarded as children born within
marriage (‘legitimate’) (See Bam v Bhabha)
• When the court declares a marriage to be a putative marriage, it also issues a
declaratory order that the children of the marriage be regarded as ‘legitimate’
Void, voidable and putative marriages (cont.)
• Property rights of the parties:
• Most important difference between an ordinary void marriage and a void
marriage deemed to be a putative marriage = The effect on the spouse’s marital
property
• Which spouse acted in good faith (bona fide)?
• Did the purported spouses conclude an antenuptial contract?
• Where both acted bona fide:
• 1. No antenuptial contract = Marriage deemed to be in community of property
and the (putative) joint estate is divided equally between them
• 2. Antenuptial contract = Either of the spouses may enforce any obligations due
under the contract in law (i.e. the normal rules of the law of contract apply)
Void, voidable and putative marriages (cont.)
• If only one of the spouses acted bona fide:
• See Wells v Dean-Willocks 1924 CPD 89
• No antenuptial contract = Marriage will be deemed in community of property if it
favours the innocent party
• Antenuptial contract = The innocent party can choose to enforce the terms of the
contract or not
• See the ‘Obiter’ box on p. 257
• END