life partnerships a Flashcards
requirements of a civil marriage (27 cards)
name the requirements of civil marriages
- capacity to act
2.agreement - lawfulness
- prescribe formalities
what is the significance of capacity to act
the fundamental element of a civil marriage is agreement. therefore, the parties are required to have capacity to act, for them to be able to enter into a valid civil marriage. Meaning, that for the persons who have no capacity to act, such as mentally ill people and infantes. Are regarded as incapable of entering into a civil marriage. Some persons have limited capacity, such as minors who are of the age of puberty.
declared prodigals- capacity to act
Pienaar v Pienaar’s Curator, a person who is placed under curatorship is a person that has been ruled incapable of managing their own affairs. In the case, the court held, that a person who has been placed under curatorship has the ability to enter into a civil marriage, without the consent of their curator. However, a declared prodigal is prohibited from entering into a civil marriage without the consent of their curator. Additionally, if the are allowed to get into a civil marriage, the marriage will be out of community of property.
mentally ill persons- capacity to act
if a person is de facta mentally ill, at the time they entered into a civil marriage. The marriage is regarded as void, being that the person had no capacity to act. The mental illness affects their capacity to understand the nature and consequences of the juristic act. Importantly, if a mentally ill person is of sound mind at a particular moment, they have capacity to act and their marriage is valid. The person who is declared mentally ill has the burden to prove that they are normal. Lastly, a curator cannot consent to a civil marriage, on behalf of a mentally ill person.
minors- capacity to act
minors between the ages of 7-18 have limited capacity. Therefore, cannot perform juristic acts, unless they have the consent of there parents or legal guardians.
Requirement for a minor to enter into a civil marriage, according to s 24(1) of the Marriage Act
the act states that the marriage officer is prohibited from solemnising a minor’s marriage. With the exception that the consent had been granted and provided to them in writing.
what does s27 of the marriage act say about the capacity to act of minors
says that if the marriage officer reasonably suspects, that a person is of the age that they cannot enter into a civil marriage without consent. The marriage officer has the ability not to solemnise the marriage, unless the provide the written consent
consent that is required for a civil marriage of a minor
- the parents
- the legal guardians
- the minister of home affairs
4.the presiding officer of the children’s court
5.the high court
consent that is required for the civil marriage of a minor- the parents
if the minor has both parents, who are still alive, both of the parents have to consent. Unless, the court orders otherwise or sole guardianship has been granted to one of the parents.- section 18(5) of the Children’s Act
legal guardian- consent to minors
if the child is orphaned without a legal guardian been appointed- the high court and the master of the high court may appoint a legal guardian for the minor.
what is the exception for legal guardians to give consent to minors-civil marriage
in order to protect the minor from abuse, and have the minor’s best interest. A legal guardian cannot consent to a civil marriage between themselves and the minor. if a legal guardian and their ward want to get into a civil marriage, they have to obtain the consent of the High Court
section 26(1) of the marriage act- minors
states that a boy below the age of 18 and a girl below the the age of 15 cannot marry without of the minister of home affairs. if they are granted the consent the other legal requirements still have to be complied with. 1. consent of the parents/guardians
2. prescribed formalities are to be met with.
when can the minister of home affairs ratify a minor’s marriage
if a male or a girl minor, below the age of 15 years enters into a civil marriage without material consent
section 26(2) of the marriage act, what are the requirements for the minister to ratify a marriage
- if the minister considers the marriage desirable
- considers the ratify will be in the interest of the parties
3.the marriage was solemnised according to the provisions of the marriage act
when can a presiding officer of the children’s court give consent to a minor, according to the marriage act
- both of the minor’s parents or the legal guardian is absent
2, when the minor cannot obtain the consent of their parent/s or legal guardian
However, the presiding officer is prohibited from granting the consent if the parent/s or legal guardian withholds consent.
section 25(4) of the marriage act say about minors getting consent
if the presiding officer refuses to consent to the marriage, the minor may approach the High court for consent.
what are the two tests in section 25(4),regarding the consent of the minor
- is the refusal of consent without adequate reason
- is it contrary to the minor’s interests
what are the instances where a minor requires no consent to enter into a civil marriage
- a minor who has previously entered into a valid civil or customary marriage, as they attained majority status.
what is the requirement for agreement for a civil marriage
both parties are required to have the intention to enter into a civil marriage, with each other. During the wedding ceremony, the marriage officer must ask the parties if they accept being husband and wife. The parties must give an affirmative answer.
give the two ways in which mistake takes form. Give an explanation, for each factor.
- mistake in persona- mistake concerning the identity of one of the parties.
2, mistake in negotio- mistake in the juristic act that one is getting into. eg. party A thinks they are getting married, whereas, party B thinks they are getting engaged.
Consequences of such mistakes is that the marriage had never existed, void, as the parties never came into an agreement.
name the ways agreement to a civil marriage is absent
- mistake
- misrepresentation
- duress
- undue influence
when does misrepresentation take place,give examples
if one of the parties misleads the innocent party, before the civil marriage.
1. making false statements OR
2. creating false impression by concealing information.
Material misrepresentation results in the marriage being voidable.
examples- prenuptial stuprum, impotent or sterile.
what is duress
is when one of the parties was forced to consent to the civil marriage. The marriage is voidable. In the Smith v Smith case, the woman was extensively coerced by her father and the husband, that she lacked any will during the wedding. The court held that the duress rendered the marriage voidable, therefore set aside.
marriage officers’ role in the prescribed formalities
a civil marriage may only be solemnised by a marriage officer
