What Is The Difference Between Void And Voidable Marriages In South Africa?

A void marriage in South Africa is treated as if it never existed — there is no valid marriage to dissolve and no decree of divorce is needed — whereas a voidable marriage is a valid marriage that exists until a competent court sets it aside. The two categories are set out under sections 23 and 24 of the Marriages Act 25 of 1961 (as amended by the Marriage Act 55 of 2001), and the practical consequences differ on annulment procedure, children’s status, property division, and inheritance claims.

The Core Distinction in One Sentence

The difference is straightforward at first glance but consequential in practice:

• Void marriage — no marriage ever existed; the law treats the union as a nullity from the start.
• Voidable marriage — a valid marriage that can be undone by a court order.

It determines whether the parties ever had spousal rights, whether a court order is needed, and what happens to property, children, and inheritance. It also sets the limitation period, who has standing to challenge the marriage, and whether re-marrying is possible. The firm’s family law practice, headed by Director Anna-Mi Nel, regularly advises clients on which side of the line their situation falls before any application is filed.

The Statutory Framework: Sections 23 and 24 of the Marriages Act 25 of 1961

The Marriages Act 25 of 1961 was amended by the Marriage Act 55 of 2001 to insert the modern framework for void and voidable marriages:

• Section 23 prohibits marriages between persons already legally married, within prohibited degrees of consanguinity or affinity, or in any other prohibited category — a marriage in breach is void.
• Section 24 lists the voidable grounds: lack of free consent, lack of capacity (mental incapacity or intoxication), proxy marriage without written authority, and failure to obtain the parental or Ministerial consent required for a minor.
• Section 26 requires a court order to set aside a voidable marriage; no equivalent requirement exists for a void marriage.

The Recognition of Customary Marriages Act 120 of 1998 governs customary marriages separately.

Grounds That Make a Marriage Void (No Valid Marriage Ever Existed)

A void marriage has no legal existence from the outset:

Ground	Source	Practical Effect
Bigamy — either party already legally married at the time of the ceremony	Marriages Act, section 23(a) read with section 1	No spousal rights; “second” marriage is a nullity
Parties within prohibited degrees of relationship	Marriages Act, section 23(b)–(c)	Nullity from the start; criminal sanction in some cases
Marriage not solemnised by a designated marriage officer	Marriages Act, section 3 read with section 30	No valid ceremony, no marriage
Failure to have the prescribed witnesses present	Marriages Act, section 3	No valid ceremony, no marriage
Marriage in violation of an existing court order prohibiting it	Marriages Act, section 23 read with domestic violence and related legislation	Nullity from the start

A void marriage does not require a court order to “end” it — it is treated as having had no legal effect. Confirmation can be sought by way of a declaratory order from the High Court.

Grounds That Make a Marriage Voidable (Valid Until Set Aside)

A voidable marriage is valid in law until a court sets it aside:

Ground	Source	Who Can Raise It
Consent obtained by duress, fraud, or mistake	Marriages Act, section 24(1)(a)	Party whose consent was vitiated
Mental incapacity or intoxication at the ceremony	Marriages Act, section 24(1)(b)	Party who lacked capacity, or guardian
Minor married without required parental or Ministerial consent	Marriages Act, section 24(1)(c)	Minor, parent, Minister, or other spouse
Proxy marriage without proper written authority	Marriages Act, section 24(1)(d)	Party whose consent was not personally given

A voidable marriage carries full spousal consequences in the interim — property rights, maintenance obligations, and inheritance entitlements — until a court sets it aside.

How to Tell Which One You Have: A Working Test

Work through the section 23 and section 24 grounds in sequence:

1. Capacity: Did both parties have legal capacity — not already married, not within prohibited degrees, of sound mind, and of the prescribed age? If no on any point and the defect is captured by section 23, the marriage is void.
2. Consent and ceremony: Was consent genuinely given, free of duress, fraud, or mistake? Was either party intoxicated or mentally incapable at the ceremony? Was a minor married without the required consent? Was the marriage conducted by proxy without authority? If yes to any, the marriage is voidable under section 24.
3. Same defect, different outcome: An underage marriage without parental consent can be voidable rather than void in some configurations.

Procedural Consequences: What Happens Once You Know Which One You’re Dealing With

Void marriage

No formal annulment process is required — there is no marriage to annul. Parties can apply to the High Court for a declaratory order confirming the nullity if they need certainty (for example, before re-marrying without risk of a bigamy charge). The firm routinely files declaratory applications in the Gauteng Division of the High Court.

Voidable marriage

A formal application for annulment must be filed in the High Court, brought by a party with standing (the party whose consent was vitiated or, for minors, the parent, the Minister, or the child), with corroborative evidence on the ground relied on. Annulment work is handled by the firm’s family law team under Director Anna-Mi Nel, who heads the Family Law Department and co-directs the Sandton branch.

Limitation period

For voidable marriages, an annulment application should be brought within a reasonable time after the party becomes aware of the ground; delay can be a bar to relief.

Downstream Effects on Children, Property, and Inheritance

The divide cascades into every family-law consequence of the union:

Issue	Void Marriage	Voidable (Until Set Aside)	After Annulment
Children’s status	May be legitimated by parents’ subsequent marriage or recognised under the Children’s Act 38 of 2005	Legitimate from birth until set aside	Court makes provision for children in the annulment order
Property	No spousal property regime arises	Marital property regime applies in full	Court has discretion to make just orders, including asset division
Maintenance	No spousal maintenance obligation	Spousal maintenance may be claimed by either party	Court can order maintenance as part of the annulment
Inheritance	No claim under the Intestate Succession Act 81 of 1987	Surviving spouse inherits until annulment	Depends on timing and the annulment order

Customary Marriages and the Distinction

The Recognition of Customary Marriages Act 120 of 1998 governs customary marriages and requires both parties to be over 18, mutual consent, and (since the Constitutional Court’s 2020 amendments) registration within a prescribed period. A customary marriage that fails these requirements is void; one with the required formalities is a full marriage under the Intestate Succession Act 81 of 1987, the Maintenance Act 99 of 1998, and the Matrimonial Property Act 88 of 1984. Lobola / bride-price is not a validity requirement, but non-payment of agreed lobola can be raised as a ground for dissolution.

The Constitutional Court’s 2020 judgment in Ramuhovhi and Another v President of the Republic of South Africa and Others reformed the registration regime so customary-marriage status is no longer hostage to a registration delay — confirm current requirements with a family law practitioner.

Putative Marriage: A Separate Doctrine That Often Comes Up Alongside Void and Voidable

A putative marriage is a union that is in fact void or voidable but was entered into in good faith and without knowledge of the defect. Under South African common law, a spouse who entered in good faith may claim maintenance and a share of property similar to a surviving spouse, even though the marriage is invalid. The doctrine operates independently of the void/voidable distinction.

Frequently Asked Questions

If my marriage is void, do I still need to get divorced?

No — a void marriage is treated as if it never existed, so there is no marriage to dissolve. For formal proof before re-marrying, apply to the High Court for a declaratory order confirming the nullity.

How long do I have to apply for annulment of a voidable marriage?

There is no single statutory time limit, but the application should be brought within a reasonable time after you become aware of the ground. Long delays can be raised as a bar to relief.

Can I re-marry immediately after an annulment?

Once a voidable marriage is set aside by court order, you are free to re-marry — wait until the order is granted and any appeal period has expired. For a void marriage, you were never legally married.

What happens to our children if our marriage is annulled?

A court granting an annulment of a voidable marriage can make orders about care, contact, maintenance, and guardianship in the child’s best interests under the Children’s Act 38 of 2005. Children of a void marriage may be legitimated by the parents’ subsequent marriage.

Is a customary marriage void or voidable if it is not registered?

A customary marriage without the required registration under the Recognition of Customary Marriages Act 120 of 1998 is not recognised as a valid marriage for most purposes. The Act was strengthened following the Constitutional Court’s 2020 judgment in Ramuhovhi; confirm the current regime with a family law practitioner.

Does putative marriage still apply in South Africa?

Yes — the common-law doctrine continues to apply, and a spouse who entered in good faith may claim maintenance and a property share on the same basis as if the marriage had been valid.

Can Burger Huyser Attorneys help with an annulment application?

Annulment falls within the firm’s family law practice and is handled through the High Court. Burger Huyser takes instructions on family-law matters across its Gauteng branches; a first consultation can be booked at the nearest branch.

Need to confirm whether your marriage is void, set aside a voidable marriage, or pursue a putative-marriage claim? Burger Huyser Attorneys’ family law team can take the matter from the first consultation through to the High Court order. The firm practises from its head office at 49 First Avenue, Linden, Randburg (011 888 0246), with branches in Bedfordview (011 201 7190), Sandton (011 253 3080), Centurion (012 644 4990), Pretoria (012 471 5700), Roodepoort (011 668 0030), Alberton (011 439 3990), and Midrand (010 022 4082). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).