In South Africa, marriage is a legally recognised union that can be solemnized under civil or customary law. However, there are instances where a marriage may be declared null and void. This process essentially invalidates the marriage, treating it as though it never legally existed.
For instance, a man or woman who is customarily married to another person cannot enter into a civil marriage with someone else without divorcing the customary spouse. Similarly, a man or woman married under civil law cannot enter into a customary marriage with another person, as per the Recognition of Customary Marriages Act.
Understanding the grounds for nullity is essential for individuals who believe their marriage may not meet the necessary legal requirements.
Legal Basis for Declaring a Marriage Null and Void
In South Africa, the legal framework for declaring a marriage null and void is governed by the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act 120 of 1998, and common law principles. Below are the circumstances under which a marriage can be declared null and void under both civil and customary law.
Grounds for Nullity in a Civil Marriage
1. Non-Compliance with Formal Requirements
- The marriage was not solemnized by a legally recognized marriage officer.
- The marriage was not conducted in the presence of two witnesses, as required by law.
2. Prohibited Degrees of Relationship
- The parties are closely related by blood or affinity (e.g., parent-child or sibling relationships), which is prohibited under South African law.
3. Bigamy - If one party was already legally married to someone else at the time of the marriage, the subsequent marriage is invalid.
4. Lack of Consent - If one or both parties did not consent to the marriage due to duress, fraud, or mental incapacity, the marriage can be declared void.
5. Minority without Consent - If one party was under the age of 18 and married without the necessary consent from a parent, guardian, or court, the marriage is invalid.
Grounds for Nullity in a Customary Marriage
Under the Recognition of Customary Marriages Act, a customary marriage must comply with specific requirements to be valid. A failure to meet these requirements can render the marriage null and void:
1. Non-Compliance with Customary Law - The marriage was not negotiated, entered into, or celebrated according to the customs and traditions of the parties.
2. Bigamy - While polygamy is allowed in customary marriages, the husband must obtain consent from existing spouses and comply with specific procedural requirements. Failure to do so may invalidate subsequent customary marriages.
3. Prohibited Degrees of Relationship - Similar to civil marriages, customary marriages between close blood relatives or within prohibited kinship lines are invalid.
4. Lack of Consent - If one or both parties did not freely consent to the marriage, it can be declared null and void.
5. Age of Majority - Parties to a customary marriage must be over the age of 18. Marriages involving minors without proper consent are invalid.
The Process of Declaring a Marriage Null and Void
To declare a marriage null and void, an application must be made to the High Court or a Regional Magistrate’s Court with the necessary jurisdiction. Here are the general steps involved:
1. Consultation with a Legal Practitioner - Engage a family law attorney to assess the validity of the marriage and advise on the appropriate legal action.
2. Drafting and Filing the Application - The application must include an affidavit detailing the grounds for nullity, supported by evidence such as marriage certificates, witness statements, or expert testimony.
3. Service of Court Papers - The application must be served on the other party to the marriage and any other interested parties.
4. Court Hearing - The court will evaluate the evidence and determine whether the marriage is null and void based on the legal grounds provided.
5. Court Order - If the court finds the marriage invalid, it will issue an order declaring the marriage null and void. This order has legal consequences for both parties, particularly in terms of property and child custody arrangements.
Legal and Practical Consequences
Declaring a marriage null and void has significant legal implications, including:
- Property Division: Since the marriage is considered void from the outset, property division is not governed by matrimonial property laws.
- Children Born of the Marriage: The status of children remains unaffected. They are considered legitimate, and both parents retain their parental rights and responsibilities.
- Spousal Maintenance: Generally, there is no obligation for spousal maintenance as the marriage is deemed invalid.
Conclusion
If you believe your marriage may be invalid due to non-compliance with legal requirements, it is crucial to seek professional legal advice. Declaring a marriage null and void can be a complex process, but it is essential for ensuring clarity and resolving potential disputes. Contact our offices, for qualified family law attorney to guide you through this process and protect your rights.
Tel: 015 023 0013 or via WhatsApp at 079 809 1300. Alternatively, you may email us at info@mjmattorneys.co.za or use our digital calendar to conveniently book a consultation here (BOOK)