Marriages fall within four groups namely:
- Civil Marriages;
- Customary Marriages;
- Marriages under the Civil Union Act;
- Purely Religious Marriages.
The traditional definition of a Civil Marriage is that it is a legally recognised life-long voluntary union between one man and one woman to the exclusion of all other people.
Clearly relationships can have more meaning and consequences than this traditional definition and Legislators have taken note of these changes. Common Law has also expanded to provide for legal consequences for other types of relationships.
Legal Requirements of the Marriage Act 25 of 1961
In order for the Marriage to be valid the following are required:
- Both Parties must have the capacity to Act.
- There must be agreement between the Parties regarding their intended marriage.
- The Marriage must be Lawful.
- Compliance with the prescribed formalities is required.
Capacity to Act
Persons that lack the ability to act due to whatsoever reason such as mentally ill persons cannot enter into a Marriage.
Minors must have consent from their parents or legal guardians and the Minister of Home Affairs under certain circumstances.
If a material mistake takes place, such as to the identity of a party, then the marriage is either void or voidable.
Similar, if a misrepresentation takes place or one party is forced to consent to the marriage then the marriage is voidable.
The marriage must be lawful and if not, may be void.
In certain instances, the marriage will be unlawful:
- If one or both of the Parties are already married;
- Where persons are within the prohibited degrees of relationship, such as that a man may not marry his daughter;
- Persons without contractual capacity - to majors who are suffering from mental disorders.