- What is a void marriage?
- A void marriage is “a marriage which has simply never come into existence. The position is exactly as it would have been had the ‘marriage’ never been concluded” [See Heaton, J et al South African Family Law 4th Edition (Lexis Nexis (Pty) Ltd 2015) 33].
- Some of the circumstances on which a marriage may be declared void:
- Where the legislations requirements are not met, ie: a minor child gets married without the consent of the parents/ guardians and the Minister of Home Affairs, the marriage was not witnessed by competent witnesses.
- The civil marriage is solemnised by someone who is not a competent marriage officer.
- One of the parties is already a party to another civil marriage, a customary marriage or a civil union with someone else.
- The parties are related to each other within the prohibited degrees of relationship.
- One of the parties is mentally ill.
- A marriage entered into mistakenly where a party to it was mistaken as to the identity of the agreement or of the person that the marriage would be entered into with.
- Consequences of a void marriage:
- A void marriage is void from onset and does not affect the status of the parties.
- (Civil) marriage consequences do not apply, ie, no matrimonial regime is applicable, there is no spousal duty of support between the parties.
What happens then if A who is already married to B by a way of civil marriage met C (an innocent third party who knows nothing about A and B’s marriage) and conclude a customary marriage with her?
- C’s marriage to A has been void from the onset but C as a bona fide party to a void marriage can institute a delictual claim against A.
Does one need to get a court order declaring the marriage void?
- Not as the marriage was never recognised legally. However, it is advisable to get the declaration order from the court to avoid possible legal complications in the future.
