A void marriage is void if it is unlawful or invalid. It is as if that marriage has never come into existence.
Should a marriage not comply with the formal requirements for a civil marriage the marriage will normally be void. The Courts recognise an exception to this rule, namely where the non-compliance is based on an error or oversight regarding the question, declaration or giving of the right hand which forms part of the marriage procedure if the marriage was concluded in good faith or due to a person’s disability.
Non-compliance may include solemnisation before a person other than a marriage officer, or in the case where no witnesses are present, will render the marriage void.
Consequences of a void marriage
Due to the fact that no marriage comes into existence there are no legal consequences to the Parties. This means that inter-alia no matrimonial property system or duty to support comes into existence between them.
An innocent Party to a void marriage may have a delictual claim against the other Party.
There is also an exception to this rule namely that the marriage may be a putative civil marriage.
Putative civil marriage
This type of marriage takes place where one or both of the Parties are unaware that their marriage is void – they think at the time of marriage that they are entering into a valid marriage.
Despite the fact that the marriage does not legally exist, if at least one Party is bona fide some legal consequences will arise. When both Parties become aware of the shortcoming the marriage is no longer a putative civil marriage.
Despite the fact that the Court cannot declare the putative marriage valid, it can declare it to be a putative marriage and certain consequences follow from this declaration. This may include that children born from such relationships are viewed as born from their parents and the parents will as such both have full parental rights and responsibilities pertaining to the children.
If the Parties did not sign an Ante-Nuptial Contract, were bona-fide, at the time of the putative marriage then it is viewed that the Parties have concluded a Universal Partnership.
In the event that an Ante-Nuptial Contract was signed in terms of which community of property was excluded and only one Party is innocent then the marriage is treated as if the marriage is out of community of property if this is in the interest of the innocent Party or if both Parties were innocent.