Prescribed Formalities Flashcards
(30 cards)
Which aspects are are contained as provisions in the Marriages Act 1961?
The marriage officer and the ceremony itself.
Who can solemnize a marriage?
A competent marriage officer
Which section provides the persons who are competent to act as marriage officers?
Section 2 (1) and (2) of the Marriages Act
Which persons are regarded as competent in terms of S2?
A . Magistrates, commissioners, and special justices of the peace
B. Other officials in the civil, diplomatic or consular service of the RSA as appointed by the Minister of Home Affairs
C. Ministers of religion, or anyone holding a responsible position in a religious organization as appointed by the Minister of Home Affairs:
What are the conditions for the magistrate, commissioners, etc?
- They act ex officio (in their official capacity).
- They are competent to solemnize marriages within their office area.
What are the conditions for the ministers of religion?
- For as long as they occupy that position;
- To solemnize marriages following the Christian, Jewish, Muslim, or any Indian faith.
When does group A and B officers are obliged to solemnize the marriage?
When there is no legal reason preventing it
When are group C officers obliged to solemnize the marriage?
When it is in accordance to the religions.
When can the marriage ceremony be regarded as void?
When it is performed by someone not regarded as a competent officer. Regardless of the group.
- When the officer acts outside the area of their office/jurisdiction
What if the incompetent officer acts outside the area of their office?
It will be regarded as a crime.
What if a person, IN GOOD FAITH, BELIEVED him/herself to be a competent marriage officer but lacked the requisite authority?
The Minister (or delegate) can later say, in writing, that they were indeed competent to act.
What if the “marriage officer” did NOT act in good faith, but THE PARTIES BELIEVED that he/she was competent?
The Minister may also later declare the marriage to be valid.
Which officer can ask for a reward or a fee for performing the wedding ceremony?
Group C officers, this is only allowed because it is traditional/religious, and there might be a fee required.
Who has the onus to prove that a marriage is void by reason of an incompetent marriage officer?
The persons who allege.
When can the wedding ceremony take place?
Any day
- Any time, but only if the marriage officer agrees.
What are the requirements before the ceremony takes place? According to S12
- Both parties must provide the marriage officer with a valid ID or Affidavit.
- If one of the parties was previously married, proof of termination of the previous marriage (i.e. divorce order / death certificate) must be furnished
What are the requirements before the ceremony takes place? According to S23
Section 23 provides that if there is any objection to the marriage, the person so objecting must lodge the objection IN WRITING to the marriage officer concerned. The officer must enquire into this and ensure that there is no barrier to the marriage before he/she can proceed with solemnizing the marriage.
What are the requirements before the ceremony takes place? According to S36
provides that any person who willfully makes a FALSE declaration in terms of this Act commits an offence.
What does S29(2) of the Act say in terms of the place of the ceremony?
A marriage office shall solemnize any marriage:
1. In a church, or
2. other buildings used for religious service, or
3. in a public office or private dwelling house,
4. with OPEN DOORS.”
What does it mean by open doors?
The requirement of “open doors” should possibly not be taken literally, but should rather be interpreted to mean that the marriage should NOT be solemnized in SECRET
What happened in Ex Parte Dow 1987 (3) SA 829 (D)
In this case, the wedding took place in the front garden of a private dwelling house. The husband asked for an order declaring the marriage null and void because the marriage had not taken place “IN” the prescribed buildings mentioned in section 29(2)
Why did the Court refuse to declare the marriage null and void, inter alia, in Ex Parte Dow 1987
- There was no logical reason to insist on the strict requirement of the exact location mentioned in Section 29(2), especially since all other legal requirements for the marriage had been properly followed.
- Marriage is a very important institution, and declaring a marriage invalid for such a minor mistake (like not being in the exact building as required) would have drastic consequences for the couple.
When can the marriage take place elsewhere, other than the locations mentioned in S29(2) ?
- Serious or Long-standing ILLNESS, or
- BODILY INJURY to one or both parties.
Who must be present during the wedding ceremony?
At least five persons (simultaneously):
The Marriage Officer,
The PARTIES to be married, and
At least two COMPETENT WITNESSES
