FAMILY LAW FLF162

STUDY NOTES TOPIC1

Topic 2.
Topic 2
The Legal Requirements for Civil and
Customary Marriages

Capacity to Act
 Full Capacity to Act:
o Individuals with full mental competence can marry without any legal
restrictions.
o If a person declared mentally ill marries during a lucid interval (a moment of
clarity), the marriage is considered valid. The burden of proof lies on the
individual to prove their normalcy at the time of marriage.
 Limited Capacity to Act:
o Minors (ages 7-18):

 Have limited capacity and must obtain consent from parents or legal
guardians to marry.
 If a minor has been lawfully married before, they do not need consent
for subsequent marriages.
o Prodigals (those declared wasteful):

 Roman-Dutch law required prodigals to obtain curatorial consent to

marry.
 Modern South African views suggest that such consent may not be
necessary, and the marriage might be out of community of property if
consent isn’t obtained.
 No Capacity to Act:
o Mentally Ill Persons:

 Generally, cannot marry unless they have a clear moment (lucid

interval), in which case they gain full capacity to act temporarily.


 Persons under Curatorship (but not mentally ill):

 o Can marry without curatorial consent if they have the capacity to act at the
time of marriage.
Agreement
 For a marriage to be valid, there must be mutual consent between the parties.
 Consent must be free from duress, fraud, or mistake.
Lawfulness
 Prohibited Relationships: Marriages are void if they fall within prohibited degrees
of relationship, such as close blood relatives.
 Existing Marriages: An individual cannot enter into a new marriage if they are still
lawfully married to another person.
 Minimum Age: The legal minimum age for marriage is 18, though minors can marry
consent as mentioned earlier.
Agreement
 Intention to Marry:
o Both parties must have the clear intention to marry each other at the time of
the marriage ceremony.
o The marriage officer must explicitly ask each party if they accept the other as
their spouse, and both must affirmatively respond with "yes" for the marriage
to be valid.
 Defective Agreement:
o Issues may arise if, after the marriage, it is revealed that there was no genuine
agreement or if the agreement was defective due to factors like:
 Mistake: One party was mistaken about a fundamental aspect of the
marriage.
 Misrepresentation: One party was misled by the other regarding a
critical fact.
 Duress: One party was coerced into the marriage against their will.
 Undue Influence: One party was improperly influenced by another to
enter into the marriage.

Lawfulness
 Unlawful Marriages:
o Certain marriages are considered unlawful and are therefore void:
  Existing Marriages: A person cannot enter into a civil marriage if
they are already married under civil or customary law, or in a civil
union.
 Same-Sex Marriages: According to the provided material, marriages
between persons of the same sex are considered unlawful (though note
that South African law does allow same-sex marriages under the Civil
Union Act).
 Prohibited Degrees of Relationship: Marriages between close
relatives are prohibited.
 Legal Guardians and Wards: Marriages between a legal guardian
and their ward are prohibited.
 Different Race Groups: The material mentions this, but it's important
to note that racial restrictions on marriage have been abolished in
South Africa.
Prescribed Formalities
1. Marriage Officers:
o Only a designated marriage officer can solemnize a civil marriage.

2. Pre-Ceremony Formalities:
o Any objections to the marriage must be raised with the marriage officer
beforehand.
o The marriage officer must ensure there is no lawful impediment to the
marriage.
3. During the Ceremony:
o Both parties must be physically present during the ceremony.

4. Registration:
o The marriage must be registered immediately after the ceremony.

o The marriage register must be signed by both parties and two witnesses.

o The signed register is sent to the Department of Home Affairs as prima facie
proof of the marriage.
Customary Marriages
 Requirements for Validity:
o Prospective spouses must be over 18 and must consent to the marriage under
customary law.
 o The marriage must be negotiated, entered into, or celebrated according to
customary law.
o If one spouse is a minor, parental or guardian consent is required, or substitute
consent as per the RCMA.
o The spouses must not be prohibited from marrying due to blood relation or
affinity.
 Polygyny:
o A man in a customary marriage may marry additional wives if he complies
with the requirements of the RCMA, including court approval of a written
contract regulating the matrimonial property system.
o Failure to comply with these requirements results in the marriage being out of
community of property but not void.
 Registration:
o Customary marriages must be registered within three months after
commencement.
o Non-registration before the RCMA does not invalidate a first marriage but
entering into a second marriage after the RCMA without registration
invalidates the initial marriage.
 Lobola:
o Payment of lobola is not mandatory but can signify the negotiation and
celebration of a customary marriage.
Other Marriages
 Muslim Marriages:
o Muslim marriages are recognized as valid under South African common law.

 Buddhist Marriages:
o Buddhist marriages have also been considered in South African law, though
specific recognition may vary.
Self-Assessment Questions
1 Xavier is a person who is certified as mentally ill. He is being treated at the
REWE hospital for the mentally ill. Xavier escapes from REWE one late night and
meets an unmarried woman, Yolanda, ten days after his escape. Five weeks later,
the two marry before a magistrate. Nearly thirteen months later, REWE
establishes Xavier's address. The question being asked is whether Xavier and
Yolanda's marriage is valid. Explain. (5)

Key Points to Consider:

1. Capacity to Act:
o Under South African law, individuals with full mental capacity can enter a
valid marriage. However, mentally ill persons generally lack the capacity to
act, which includes entering a marriage.
o The only exception is if the mentally ill person marries during a lucid interval
—a temporary period where they are fully aware and competent. If a marriage
occurs during such an interval, it could be considered valid.
2. Xavier’s Condition:
o Xavier is certified as mentally ill and was under treatment at the REWE
hospital, indicating that he generally lacks the capacity to marry.
o There is no indication in the facts if Xavier was experiencing a lucid interval
when he married Yolanda. Without evidence of a lucid interval, Xavier would
not have had the legal capacity to enter a marriage.
3. The Marriage:
o Xavier and Yolanda married five weeks after his escape from the hospital, and
REWE did not establish his whereabouts until thirteen months later.
o The fact that Xavier escaped from a mental hospital further suggests that he
was not in a state to make rational decisions or understand the implications of
marriage.
Conclusion:
 Validity of the Marriage:
o Based on the facts provided, Xavier likely did not have the capacity to act
when he married Yolanda, as there is no evidence of a lucid interval.
Therefore, the marriage would be considered invalid under South African law
due to Xavier's mental incapacity.
Final Answer: The marriage between Xavier and Yolanda is likely invalid because Xavier,
being a certified mentally ill person, did not have the capacity to enter a marriage at the time
it was concluded.
2 Carla has two children, Mia and John. Due to circumstances, John is later
adopted by Adele, who has a daughter of her own, Danielle. In the light of the
above facts, discuss whether the following persons can marry each other:
2.2.1 Adele and John. (2)
2.2.2 Carla and John. (3)
2.2.3 Mia and John. (2)
2.2.4 Danielle and John. (6)
Adele and John
 Legal Relationship Post-Adoption:
o When John is adopted by Adele, he legally becomes her child. Under South
African law, adoption establishes the same legal relationship as that of a
natural parent and child.
o Prohibition on Marriage:

 South African law prohibits marriage between individuals who are

related by adoption in the same way as it prohibits marriage between
natural parent and child.
Conclusion: Adele and John cannot marry because they are legally considered mother and
son after the adoption.
Carla and John
 Termination of Legal Relationship:
o When John was adopted by Adele, the legal parental relationship between
Carla and John was terminated.
o No Blood Relation:

 However, since Carla and John are no longer legally related as mother
and son after the adoption, there is no legal prohibition based on
familial relationship.
o Public Policy Consideration:

 Although not legally prohibited, such a marriage may raise ethical or

public policy concerns. Nonetheless, legally, it may be allowed.
Conclusion: Carla and John can technically marry after the adoption because they are no
longer legally related. However, ethical and social considerations might still play a role.
Mia and John
 Full-Siblings Relationship:
o Mia and John were full siblings before John’s adoption by Adele.

o Prohibition on Marriage:
  Even after the adoption, John and Mia remain biological siblings, and
South African law prohibits marriage between siblings, whether full or
half-siblings.
Conclusion: Mia and John cannot marry because they are biological siblings, which is
prohibited by law.
Danielle and John
 Adoptive Siblings Relationship:
o Danielle and John are not biologically related but become adoptive siblings
after John is adopted by Adele, Danielle’s mother.
o Legal Status of Adoptive Siblings:

 South African law does not explicitly prohibit marriage between

adoptive siblings unless they are also related by blood.
o Consideration of Family Dynamics:

 While there is no legal prohibition, the social and familial implications

of such a marriage may be significant. Courts or society may view this
marriage with concern, depending on the specific circumstances and
the closeness of the sibling-like relationship.
o Public Policy:

 Despite no strict legal prohibition, the relationship dynamics as

adoptive siblings could raise public policy concerns, although these
would not legally invalidate the marriage.
Conclusion: Danielle and John can legally marry because they are not biologically related,
and South African law does not prohibit marriage between adoptive siblings. However, social
and ethical considerations might influence the acceptability of such a union.