1.3 Capacity and identity of parties Flashcards
What does N guarantee when attesting to ND?
By implication, the correctness of the parties’ identities and their capacity to act.
How is natural person IDENTITY established?
Facts contained in ID
What determines COMPETENCE of natural persons to act
1 Age (minors)
2 Marital status
3 Solvency
Facts to be stated in affidavit confirming marital status
- in or out of community of
property - Date of marriage
- Polygamous/monogamous
- Is marriage governed by contract made order of court ito. Customary Marriages act, 120 of 1998
5, Have parties entered Into any celebrations in contemplation of any customary marriage prior to the date of his/her marriage in respect of which he/she makes the affidavit
- Has matrimonial property system has been changed since the
conclusion of the marriage; - was husband domiciled in or outside South Africa at the time
of marriage and
5 Whether the woman is living with a man as his wife or vice versa, although they are not married to each other
What does S18 of Childrens Act state?
38 of 2005
person may either
have full or specific parental rights and responsibilities in respect of a child.
rights and responsibilities that a person may have in respect
of a child include:
> To care for the child;
► To maintain contact with the child;
► To act as guardian of the child; and
► To contribute to the maintenance of the child
General rule for minors with guardians
S18(5) of Childrens Act, 38 of 2005
Whenever more than one person has guardianship of a child,
each one of them is competent to exercise independently and without the consent of the other any right or responsibility arising from such guardianship.
Exceptions to general rule / When is consent of both guardians required?
- When a court orders so;
- When any other law (besides the Children’s Act) requires so;
3 The contracting of a marriage by the minor child;
4 For the adoption of a child;
5 For the child’s departure or removal from the Republic:
6 For the child’s application for a passport;
7 For the alienation or encumbrance of any immovable property of
the child or any right to immovable property belonging to the minor
child
What is a civil union?
Civil Union act 17 of 2006
A voluntary union by two persons who are both 18 years or older, which is solemzied and registered by way of either a marriage of civil partbnership.
Can a minor get married?
yes,
ito s24(1) of Marriage Act , 25 of 1961
Marriage officer may solemnize between one or both minors
Must obtain consent legally required for contracting the marriage has been granted and furnishing to him in writing
SA18 of Childrens act - both parents/all guardians must consent
Can minors enter into customary marriage?
yes
section 3(3)(a)
both the parents of a prospective minor spouse or if
he/she does not have parents, his/her or legal guardian must consent to the
marriage.
Explain process to obtain authorisation for marriage for a minor (Marriage Act, 1961)
In addition to the consent of the parent(s) or guardian, the Minister of Home
Affairs must consent in writing to the marriage of males under 18 and
females under 15 years of age. If such consent is given, the parent or
guardian still has to assist the minor in concluding the antenuptial contract.
Reference to the consent of the Minister of Home Affairs must be made
in the preamble of the antenuptial contract. The original consent must be
kept in the notary’s protocol and a certified copy must be lodged together with
the antenuptial contract in the deeds office.”
The Commissioner of Child Welfare may consent to the marriage of a
minor if the minor does not have parents and no legal guardian has been
appointed for that minor or if the minor is for any good reason unable to
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obtain the consent of his/her parents or guardian.52
If the parents, guardian or Commissioner of Child Welfare refuses to
consent to the marriage, a judge of the High Court can consent to the
contracting of the marriage. The application to court may also include an
application for the consent to the conclusion of an antenuptial contract. Such
application is preceded by an application for the appointment of a curator ad
/item for the minor who must assist the minor with the court application and
who must also make a recommendation to the court in respect of the desired
consent to marry. The court order must be referred to in the preamble of
the antenuptial contract. The original court order must be filed in the
protocol of the notary and a certified copy thereof must be lodged together
with the antenuptial contract in the deeds registry.”
Explain process to obtain authorisation for marriage for a minor (Customary Marriages, 1988)
In addition to the consent of the parent(s) or guardian, the written permission
of the Minister of Home Affairs must be obtained.”° The Minister may grant his consent if he considers such marriage desirable and in the interests of the
relevant parties.”
If the consent of the parent or legal guardian cannot be obtained, section
25 of the Marriage Act shall apply.63 In other words, the last two paragraphs
under the heading “Marriage Act 25 of 1961 directly above shall also apply in
this instance.
Can minors conclude civil union?
No, by definition, you must be 18 or older.
What is the General rule for assisting minor to conclude ANC
Only 1 parent / guardian need to assist
What is the exception to general rule when minor concludes an ANC?
However, if the minor alienates immovable property or a right to
immovable property in the antenuptial agreement, he must be assisted by both
his parents
