Voidable Marriage Flashcards
(14 cards)
What is the meaning of a voidable marriage?
A voidable marriage is a legally valid marriage from the start, but if certain grounds existed before or at the time of the marriage, one of the spouses can apply to a competent court to have the marriage annulled, meaning legally cancelled.
Which courts are competent to annul a voidable marriage
The High Court and the division of a magistrate court.
When did the magistrate court become competent to annul a marriage?
Since the operation of the jurisdiction of Regional courts amendment Act 31 of 2008 on 09 August 2010
What are the grounds for voidability?
- Minor marriages without consent.
- Material mistake, misrepresentation, duress.
- Sterility, stuprum, impotence.
What are the consequences of voidability?
marriage remains the same until nullity is declared.
What is the difference between divorce and a nulled marriage?
Divorce occurs due to events that occur during the marriage, and it has special consequences attached to it, such as maintenance, division of assets, etc.
These consequences do not apply when a marriage is annulled. Annulment implies setting aside with retrospective effect.
What consequences are an exception when it comes to Annulment?
- Children will be from married parents.
- If one of the parties gets married while they are in a voidable marriage, the external marriage will be void.
- If the marriage made contracts to third parties, the contracts will still be valid.
What is the meaning of impotence?
The spouse’s inability to have sexual intercourse.
Which cases with impotence?
Joshua vs Joshua
Smith v Smith
When will annulment not be granted in terms of impotence?
When the other spouse knew about it before the conclusion of the marriage.
When the other spouse condoned it.
When the impotence is due to old age. (Foreseeable)
What is the meaning of Sterility?
It implies Infertility. The ability to have sex but not conceive.
What does Van Niekerk imply when it comes to sterility?
That a marriage could be voidable if:
One spouse was sterile at the time of the marriage, and the couple intended to have children.
What was decided in Venter v Venter?
It was held that sterility does not affect the validity of the marriage.
Every spouse bears the risk that the other may be infertile.
Only fraudulent concealment (deliberate lying about being fertile) may justify annulment.
This is the preferred and accepted position in South African law.
What was noted in by Cronje and Heaton in National Coalition for Gay and Lesbian v Minister of Home Affairs?
Procreative potential is not a defining characteristic of conjugal relationships.”
