Putative Marriage Flashcards
(7 cards)
What is the meaning of a putative marriage?
A putative marriage is a marriage that is legally void, but one or both spouses genuinely (in good faith) believed it was valid when they entered into it.
What happens if the party finally realize?
The marriage ceases to be putative
What is the purpose of the law in putative marriages?
To protect innocent parties and prevent unfair consequences, especially for spouses and children.
What are the consequences of a putative marriage when it comes to children?
- The children born in such a marriage will be regarded as children of married parents.
- The court order is merely declaratory. (Purpose of the law)
- Both parents automatically have full parental rights and responsibilities over their children. (Sections 19 and 20 of the Children’s Act 38 of 2005):
What happens with patrimonial property if both parties were bona fide and there was no ANC?
The marriage will be in community of property.
What happens with patrimonial property if there is ANC that excludes CoP?
The ANC is void (because the marriage is void), but:
The parties’ intention not to be in a community of property is taken into account. If excluding community of property (i.e., keeping their estates separate) is better for the innocent spouse, then the court will not force them to share property.
Both spouses acted in good faith (both were innocent), then the court generally respects their choice in the ANC to exclude community of property.
Bona fide spouse MAY enforce any benefits due to him/her In terms of the ANC.
What happens with patrimonial property if only one party was bona fide?
The marriage will only be in community of property if it is to the advantage of the bona fide party. If not, it will be out of community of property.
