Family Law

LWFLA1-44

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 What will be covered
in today’s lesson?
Explain the difference between a void,
voidable, valid and putative marriage

Week 3
Lesson 1 legal consequences of void voidable and
putative marriages

Apply the above principles to a given set

of facts with reference to legal authority.
 VOID MARRIAGES
• ‘‘A void marriage is “a marriage which has simply never come into
existence. The position is exactly as it would have been had the ‘marriage’
Meaning never been concluded”
• A void marriage is void, regardless of whether or not a court makes a
declaration to this effect

• Application for a declaration of nullity is usually made to court (the court

Declaration of nullity? simply confirms the existing state of affairs with a declaratory order)

Type of defect • Critical defect to render marriage as void

• purpose of a declaratory order is to place on record the fact that the

Case: Ex parte Oxton marriage entered into by the parties was void ab initio and gave rise
to no legal consequences
 CAN COURTS DECLARE A VOID MARRIGAE AS VALID?
• Courts have no discretion to do so
• Exception – statutory qualification
• Minor marries without the consent required from the
Minister of Home Affairs = void
• However = Section 26 of the Marriage Act =
Minister may grant permission retrospectively, with
the effect that the marriage will become valid.
Activity
Alice and Bob decided to get married. They arranged a beautiful wedding
ceremony with all the formalities, including inviting friends and family,
exchanging vows, and signing a marriage certificate. However, after a few
months of marriage, their relationship began to deteriorate, and they decided to
seek a divorce.
During the divorce proceedings, it was discovered that their marriage might be
void because of the following facts:
• Alice was already married to another person, Charlie, at the time she married
Bob. She had not obtained a legal divorce from Charlie before marrying Bob.
• Bob was not of sound mind at the time of the marriage and lacked the mental
capacity to understand the nature and consequences of the marriage.
• The marriage was never registered

Based on these facts, answer the following questions

1. Is the marriage between Alice and Bob valid or void? Provide reasons for
your answer
2. If the marriage is void, what are the consequences of a void marriage?
Consequences of • Parties maintain status as unmarried
a void marriage persons
• Marriage has no existence
• No legal consequences of a marriage
• However - 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
Nullity of a marriage
Ex parte Oxton 1948 1 SA 1011 (C) 1014
• The grounds for a decree of nullity of a marriage fell into
two classes, namely:

1. those which render the marriage null and

void ab initio, in which case no marriage ever
subsisted at all; and

2. those which make a marriage voidable only,

so that the parties remain validly married unless
and until the court grants a decree of nullity .
Grounds for nullity
The grounds on which a marriage is void are based on the
requirements for a civil marriage

Lack of absolute and relative capacity

Examples
• X marries below the age of puberty
• X was mentally ill, or mentally disabled, at the time of the wedding
• X & Y are related to each other within the prohibited degrees of relationship
• X is already married
Discussion

What are the formalities that must be complied with

in a civil marriage?

Lee and Horore suggest that marriage should be void

“where some material formality has not been complied
with”. Provide examples of immaterial formalitie(s).

What was the decision of the court in the case of Ex

Parte Dow (ref to formal requirements of a
marriage)?
VOIDABLE MARRIAGE
• “ valid for all purposes unless and until the court grants a decree of nullity on
Meaning the ground of a defect which already existed at the time of the marriage
ceremony”

• Some less important defect at the time the marriage was entered into.
Type of defect • Defect not critical enough to void the marriage

• One/both parties can apply for annulment

annulment • Effect – marriage is set aside

difference • Divorce vs annulment

Consequences of a voidable
marriage
• Valid until set aside by court
• Consequences of not applying for annulment
• marriage still exists, thus legal consequences of the
marriage still exist

• Decree of annulment – effects

• Marriage is cancelled
• Retroactive
• Parties are put in the same position as if no
marriage had taken place
• Status of children is not altered – children will be
born of married parents (s39 of the Childrens Act)
 Grounds for voidability
impotence

Material
mistake duress

A court will set aside a

marriage as voidable in any of
the following circumstances:
Sterility
Concealed
existing
1. Venter v Venter pregnancy
2. Van Niekerk v Van Niekerk
3. National Coalition for Gay and Lesbian Minority
Equality v Minister of Home Affairs (CC
preferred approach taken in Venter)
PUTATIVE
MARRIAGES
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.

Can you think of examples?

Refer to Zulu v Zulu 2008 (4) SA 12
(D)
Requirements of a putative marriage
Consequences of a putative marriage
 Consequences…
Nb - Remains void. Court has no discretion to declare it valid

Children born out of a putative marriage are children born of married parents
• Effect?

Property rights of parents

• If both spouses acted in good faith
• No ANC concluded = marriage is deemed to be in COP and the joint (putative) estate is
divided equally between them
• ANC concluded = either party can enforce obligations under the contract
• If one spouse acted in good faith (Wells v Dean-Willcocks)
• No ANC concluded = marriage is deemed to be in COP IF it favours the innocent party
• ANC concluded = innocent party can choose to enforce the terms of the contract
Activity
Jane and Michael have been in a loving and committed relationship
for several years. They decided to get married out of community of
property, and had a beautiful wedding ceremony with all the
formalities, including exchanging vows and signing a marriage
certificate. They have a 1-year-old named Abigale. However, 2
years into the marriage, Micheal discovers that Jane's previous
divorce from her ex-spouse was not finalized at the time of her
marriage to Michael. Michael is devastated by this revelation.

1. Discuss the concept of a putative marriage and explain whether

Jane and Michael's marriage qualifies as a putative marriage
based on the provided scenario.
2. What are the legal consequences of the marriage being declared
as a putative marriage?
Personal Consequences of Civil
Marriage

Chapter 7

Reminder – test 1 on Friday