Family Law LU5

• Civil marriage


  A marriage in terms of the Marriage Act or the Civil Union Act
• Civil marriages are now permitted between same-sex couples and this civil marriage must be redefined as "the legally recognised voluntary union for life of two people to the exclusion of all others."
• Many rules of the traditional common law marriage remain in the modern law of civil marriage (for example, rules about spousal support and cohabitation.)
• Several traditional rules of common law marriages have been abolished or have been substantially changed.
• Modern civil marriage is highly regulated by statutes for example the Matrimonial Property Act and the Divorce Act that it is more accurate to use the term "civil marriage" rather than "common law marriage" to describe marriages of this type.
• The term "civil marriage"


  Used to distinguish this form of marriage from customary law marriage or religious marriage
• Capacity to marry


  • Spouses must have capacity to marry each other
  • Absolute capacity - each spouse must have capacity to marry
  • Relative capacity - spouses have capacity to marry each other
• Absolute capacity


  Each of the spouses must have the capacity to marry
• Mental illness


  People who are mentally ill if they are unable to understand the legal nature and consequences of their acts or if they are motivated to perform the acts by delusions caused by mental illness have no capacity to marry
• Age


  • Children below the age of puberty (12 for girls, 14 for boys) have no capacity to get married
  • Minors over the age of puberty may conclude a civil marriage with permission from guardians
• It is likely that the South Africa law will soon be amended to make 18 years the minimum age for marriage and thus forbid the marriage of minors.
• Minors may not conclude a civil marriage in terms of the Civil Union Act.
• Relative capacity


  The spouses have the capacity to marry each other
• Prohibited degrees of relationship

  • People who are too closely related to each other may not marry each other
  • Includes blood relationships (consanguinity) and relationships created by marriage (affinity)
  • Adopted children may not marry biological blood relatives within the prohibited degrees
• In terms of common law, people could only marry each other if they were of opposite sexes. People of same-sex did not have the capacity to marry.
• In the Fourie case, the Constitutional Court declared this rule unconstitutional and instructed Parliament to change the law so that same-sex couples could also conclude civil marriages.
• Parliament responded by passing the Civil Unions Act, allowing both opposite sex couples and same-sex couples to conclude a civil marriage.
• Consensus


  • A civil marriage is a "voluntarily union" between two people
  • People can only marry each other if they give voluntary consent to the marriage
  • The voluntary consent must be informed consent
• Lack of capacity to consent


  People who are mentally ill or severely intoxicated cannot give voluntary informed consent
• Duress or intimidation (metus)


  People cannot give voluntary consent to marriage if they are forced into it through intimidation or duress
• Material mistake


  A marriage will be void or voidable if one or both of the spouses has made a material mistake, such as not realizing they were concluding a marriage or mistaking the identity of the other party
• Formalities for civil marriage

  • Marriage must be undertaken in a public and formal way
  • Prescribed formalities include marriage officers, objections, proof of age and identity, marriage formula, witnesses, place and time, and registration
• Marriage officers


  A civil marriage must be solemnised by a duly appointed marriage officer, including magistrates, special justices of peace, designated Home Affairs employees, and ministers of religion or other officials of religious organisations
• Objections


  Any person can lodge an objection to a proposed marriage, which the marriage officer must investigate
• Marriage formula


  Couples must publicly agree to be married to each other using a formula approved by the Minister
• Witnesses


  A civil marriage will only be valid if there are at least two competent witnesses present
• Place and time of the wedding


  The marriage must be solemnised in a public office, private dwelling house with open doors, or other premises used for religious purposes
• Registration of the marriage

  Civil marriages must be registered by the marriage officer, parties, and witnesses signing the marriage register, which is then forwarded to the population register