Legal capacity Flashcards
(26 cards)
Which groups of people do not have the full capacity when it comes to marriages?
- Mental
- Minors
- People under curatorship and declared prodigals
compo mentis
It is presumed that all persons are sane – any person who alleges otherwise must prove that the person concerned is mentally ill.
Who can be regarded as mentally ill in terms of having to conclude a marriage?
Someone who can not understand the NATURE OR CONSEQUENCES of marriage as a juristic act.
What will happen if a mentally ill person concludes a marriage while they don’t understand the nature or the consequences?
VOID
Does mental illness necessarily imply lack of capacity?
No
lucidum intervallum
Moment of clarity
What happens if a mentally ill person has lucidum intervallum at the time of concluding the marriage?
The marriage can be regarded as valid because the mentally ill person was able to understand the consequences and nature of marriage at this moment.
Who does the onus of proof fall on when it comes to mental illness?
The person who alleges.
Can a person under curatorship enter into a marriage without the concerns of their curator?
Yes, but such a marriage should not be in a community of property.
What happens if the prodigals enters into a marriage in community of property?
It would be to the prodigal’s detriment.
What does Heaton and Kruger states?
the prodigal’s interests thus determine whether the marriage will be in or out of community of property
Does a minor who once got married require consent to marry again?
No. Provided that the dissolution of the marriage was due to divorce or death. (Section 24(2) of the Marriages Act.
What will happen if both minors concludes marriage without consent?
The marriage will be voidable
According to S24A, who can brought the application at the high court to dissolve a voidable marriage?
The parent, guardian, or the minor themselves.
Not applicable to the presiding officer of the children’s court.
What is the time limit for the parent to apply for the court order?
Before the minor turns 18 and within 6 weeks after they have become aware of the marriage?
What is the time limit of a minor to apply for a court order?
Before turning 18 or within 3 months after turning 18
When can the court grant application for the dissolution of a void marriage?
If it is to the best interests of the minor
What happens if the time limit of application of of a court expires?
The marriage will become fully valid, and the patrimonial consequences will apply as if the minor were an adult at the time of concluding the marriage. (S24 of the Matrimonial Property Act 88 of 1984 )
What if the marriage is successfully dissolved?
The court may make an order regarding the division of the matrimonial property
What are the factors to be considered when dividing matrimonial property?
1) What each party CONTRIBUTED to the “marriage”;
2) the WISHES of the parties/parents/guardians;
3) contents of any ANC (if there is one);
4) the INTERESTS of the parties.
When can the presiding officer be approached for consent?
When the parents of the minor are absent, mentally ill, or incompetent in any other way to consent.
-And when the minor cannot obtain consent from the parents for any other good reason. However, the presiding officer cannot give consent if the parents refuse to give the minor consent.
What happens when the parents refuse to give consent to the minor?
In such instances, an application must be brought to the High Court in terms of section 25(4) of the Marriage Act. In cases where the presiding officer’s consent is required, the minor should approach the officer first (S25(4 )
What happens if the parents/ presiding officer refuses to give consent?
The High Court can also be approached, and it will grant the necessary consent if it believes that the refusal of the parent(s), guardian, or presiding officer is without adequate reason AND contrary to the interests of the minor
Which case regards the 2 complementary test that should be met in order for the high court to give consent?
B v B1983
