Family Law– LPFA 3532

Unit 2: Civil Marriages

Lecturer: Mrs A. L. Zender

04 August 2021
 Learning Outcomes:

By the end of this lesson, students should be able

to:

• define the concept marriage;

• identify the legal requirements for a valid civil marriage;
• explain the legal requirements for a legal marriage; and
• describe the prescribed formalities for civil marriages.
Prescribed Readings:
Legal Requirements for a valid civil marriage

1. Heaton & Kruger, 4th Ed. from p. 13

2. Mitchel v Mitchell 1930 AD 217
3. Lange v Lange 1945 AD 332
4. Ex Parte Groebler & Another 2004 NR 105
5. S v S 2010 NAHC 152
Civil Marriages: An Introduction
• The traditional definition of marriage is that it is the legally
recognized life-long voluntary union between one man and
one woman to the exclusion of all other persons.
• A more modern version of the definition is that a civil
marriage refers to the legally recognised voluntary union of
one man and one woman to the exclusion of all other
persons
• This traditional definition is still applicable to Namibia with
regard to civil marriages.
• Perhaps a more legal definition of the concept may be:

“A civil marriage is a marriage that is solemnised by a marriage

officer – which includes a magistrate or a religious leader who
has been certified as a marriage officer by the Ministry of Home
Affairs and Immigration”

• This therefore means that any union that is contrary to this

would not be regarded as a marriage.
Can you think
of examples?
 Constitution of Namibia:
Article 14, Family
• (1) Men and women of full age, without any limitation due to race,
colour, ethnic origin, nationality, religion, creed or social or economic
status shall have the right to marry and to found a family. They shall
be entitled to equal rights as to marriage, during marriage and at its
dissolution.

• (2) Marriage shall be entered into only with the free and full consent of
the intending spouses.
Spouse: is a gender-neutral word that refers to a husband or a wife.

• (3) The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State.
Legal Requirements for a Valid Civil Marriage

3.1 Legal capacity to act

3.2 Consensus

3.3 Lawfulness

3.4 Formalities
3.1 Capacity to act

• Persons without the capacity to act are incapable of entering into a

marriage, while those with limited capacity need to obtain
consent.
• There are therefore different categories of persons whose capacity
to marry must be ascertained:

i) Declared prodigals and Persons Incapable of managing their

own affairs

ii) Mentally challlenged persons

iii) Minors
 i) Declared prodigals and Persons Incapable
of managing their own affairs
• A declared prodigal retains their legal capacity in those areas in which the court order
does not impinge.
• In Mitchel v Mitchell 1930 AD 217, the court held that a curator has no right to set aside
the marriage of a person who has been declared incapable of managing their own affairs
• A curator has no right to interfere in the personal relationship of a person to others
which does not affect their estate.
• The curator can therefore not set aside a marriage entered into by a person who has
been declared a prodigal or incapable of managing their own affairs.
• All that the curator can do is to declare that such marriage is either in community of
property or out, whichever is more advantageous to them.
• Additionally, Ante-nuptial agreements entered into will only be upheld to the extent that
it does not impose obligations on the prodigal.
• See also Pienaar v Pienaar’s Curator 1930 OPD 171
ii) Mentally challenged persons

• The law withholds the power to enter into legal obligations from
those whose mental faculties are so impaired that they are
unable to appreciate the nature and consequences of their acts.
• Any legal transaction entered into by a mentally challenged
person is therefore void, whether or not the other person was
aware of their mental state.
• A marriage that is concluded during lucid moments is however
valid.
• However, the onus lies on the person alleging insanity to prove
it.
Lange v Lange 1945 AD 332
• In this case a man and woman got married.
• Afterwards the lady sought to have the marriage declared void ab initio, stating
that the man had been suffering from a mental disease which caused him to
experience auditory hallucinations which affected his ability to make a conscious
decision.
• The onus lay on her to prove the mental illness.
• The court held that the evidence given sufficiently discharged the onus placed on
her, further that although the defendant understood the nature of the transaction,
the marriage was influenced by the voices he was hearing.
• The court also pointed out that it was difficult to investigate the state of mind of a
person for purposes of determining whether they can be legally bound or not.

Marriage is personal and as such the curator may not consent to the marriage of a
menatally challenged person.
 iii) Minors

• Normally, all minors have limited capacity to act and therefore

require consent of both parents to marry.
• No marriages may be solemnized between parties that are minors
unless written consent has been given.
• Both the man and woman must be at least age 18 to give
independent consent to marry.
• If either of them is under age 18, then they must have written
permission from the Minister or a court in order to marry, as well as
parental consent.
• Consent to marriage of a minor must be granted by the parents.
• The Minister of Home Affairs may however grant consent to the
marriage of a minor where the parent or guardian’s refusal is
unreasonable or the parent whose consent is needed cannot be
found, is deceased or is incompetent to grant consent.
• If the parents or the guardian of the minor as well as the
Minister refuse to grant consent, then the Minor can apply
to the High Court for consent to marry.
• The Court will only grant that consent if refusal by the other
parties is without justified reason and is contrary to the
interests of the minor.
• A minor in terms of the Act is any boy or girl under the age of 18.
Minors under the age of 18 who have already been married but are
divorced or widowed need not obtain consent because they retain
their majority given to them by the first marriage.
• See further Section 10 (1) read with (r/w) Section 10 (1) of the Child
Care and Protection Act 3 of 2015
Ex Parte Groebler & Another 2004 NR 105
• The applicants were a 14 year old girl and a 29 year old man who wanted
to get married. They applied to the High Court for consent. The High Court
stated that parties were only entitled to apply to the court for consent
when the parents and the Minister had refused consent. In this case, the
consent from the Minister had not even been sought. If the parties go to
the Minister and he refuse, only then can they approach the court.
• If the minor marries without consent, the marriage can either
be ratified or dissolved for lack of consent.
• If it is dissolved, then the parties will be restored to the
position that they were but if it is declared valid then the
court will establish a matrimonial system that is in the interest
of the minor.
• The marriage will only be set aside if the court believes its
setting aside to be in the interest of the minor
2. Consensus
• Both parties must be willing to marry each other at the time of concluding the
marriage.

• This is one of the most important requirements for entering into a marriage.

• Section 30(1) of the Marriage Act 25 of 1961 (p.50) as such sets out a marriage
formula which must be used to establish the consensus of the parties.

• Genuine consensus must be present- mistake, misrepresentation, duress or

even undue influence will render that consensus absent.
 • The mistake must be material in order to exclude
consensus.
• A material misrepresentation or existence of duress or
undue influence will render a marriage voidable.

3. Lawfulness
• An unlawful marriage is void.
• Unlawfulness will be determined by looking at the persons to
the marriage.
• Marriages between the following persons are unlawful:-
i. Persons who are already married.
• S v S 2010 NAHC 152, when the two parties got married, the man was
still married to his wife. He then applied to have the marriage declared
null and void claiming that he did not know that his second marriage
was unlawful. He also sought to have the marriage declared putative in
relation to the child born of the marriage. The court held that the
marriage was unlawful but it would be regarded as putative with
regards to the child. Also see Ismail v Ismail 1983 (1) SA 1006 (A).

ii. Persons of the same sex

• W v W 1976 (2) SA 308 (W).
• Simms v Simms 1981 (4) SA 186 (D).
iii. Adoptive parents and their adopted children
• a child not marry the person who adopted him or her.

iv. Persons within the prohibited degrees of relationship – certain people may not
marry because they are closely related to each other – See LAC Marriage Counselling
Guide on prohibited degrees of r/ships
• These people fall into two categories, those who are related by blood (this is known
as blood relationship or consanguinity) and those who are related by marriage (this is
known as affinity). The relationship can be in the direct line or in the collateral line.

v. A guardian may only marry his or her ward with the consent of the High Court.
• This is because the guardian cannot consent to that marriage on the minor’s behalf.
1.4 The Prescribed Formalities
• There are certain formal requirements that need to be met in order for a marriage
to be validly solemnized. (2, 11, 29(4), 30 of the Marriage Act 25 of 1961 )
• The marriage must be solemnized by a marriage officer as defined in the
Marriage Act 25 of 1961.
• Both parties must be present during the ceremony and may not be
represented.
• The marriage must be carried out in a church building or public office of
private dwelling house with open doors and in the presence of two
witnesses – CASE???
• A marriage may however be solemnized elsewhere if the circumstances
require so, i.e. one of them has a serious or longstanding illness or has
suffered serious bodily injury.
• The marriage must then be carried out in the prescribed formula.
• A marriage officer who is a minister of religion is not required to
solemnize a marriage that would not conform to the doctrines of
their religious beliefs.

• Once the ceremony has been completed, the Marriage register must
be signed and sent to the Ministry of Home Affairs.
• This register serves as prima facie proof that the marriage has been
solemnized. So does a signed marriage certificate.
Exercises:
TRUE or FALSE
• Marriage can be defined as a civil partnership between two people
regardless of gender.

• A marriage validly constituted in any other jurisdiction will be deemed

as a valid marriage in Namibia.

• There are individuals who are incapable of entering into a valid

marriage.
Advise on the Following:
1. A minor enters into a marriage without the consent of the Father but
with the full consent of the mother. What is the validity of the
marriage?

2. X and Y got married in May 2019. In July 2019, X is diagnosed with

multiple personality disorder. The Dr is of the view that it is too
advanced to have set on just now and it is possible that the effects
of the disease started at least two years ago. Is the marriage valid?
3. X’s parents pass on when she is 16 years old. In their will, they
appointed Y, a friend since childhood to take guardianship of her. After
X turns 17, she realizes that she has fallen in love with her guardian
and vice versa. What is the possibility of that marriage being declared
as invalid?

4. What happens if the legal requirements have been met but one of
the formal requirements has not been met?
Readings for next lecture:
Unit 4: Void, Voidable and Putative Marriages
Feedback on Exercises

1. Heaton & Kruger

2. S v S 2010 NAHC 152
3. Venter v Venter 1949 (4) SA 123
4. Van Niekerk v Van Niekerk 1959 (4) SA 658
Thank You