Written By Anna-Mi Moorcroft
4 January 2023

Can A Minor Marry and Enter Into a Legal Antenuptial Contract?

According to statistics released by UNICEF (United Nations Children’s Fund), a staggering 6% of females younger than 18 years of age in South Africa were legally married in 2019. However, the actual figure is thought to be higher, especially due to customary marriages not being registered at the South African Department of Home Affairs. StatsSA released a supporting figure in 2020 indicating that the registration of customary marriages has decreased by an astronomical rate of 45.1% during the period 2011 to 2020. Compare the statistic of adolescent women under age getting married against the enormous amount of divorces ordered in 2019, which alone was 16 097.

The above numbers, figures, and statistics signify two legal truths:

  • Intended spouses must include individuals younger than 18 years, given the socio-economic demographic of South Africa and various reasons for entering into a marriage, and;
  • Parents, legal guardians, and minors need the know-how on marriage before adulthood.

Can a child under 18 years then get married with an antenuptial agreement?

Yes, when the lawful formalities have been concluded when entering into the agreement, the antenuptial agreement will not only be binding, but the marriage officer will legally be able to solemnise the marriage.

Who is classified as a minor to be married in South Africa?

  • A minor is a person that has not yet reached their eighteenth birthday.
  • A minor that has been married before and subsequently divorced will not be classified as a minor as contemplated in the Marriages Act 25 of 1961.
  • A widowed minor whose marriage has been dissolved by way of the death of their spouse shall also not classify as a minor as contemplated in the Marriages Act 25 of 1961.

What are the formalities when a minor enters into an antenuptial agreement?

  • The minor or minors intending to get married must sign the agreement in person, identical to the style and format if they were deemed to be an adult.
  • The minor’s legal guardian or the minor’s parent cannot sign the document on behalf of the minor without the minor present.
  • The legal guardian or parent cannot sign the document for the minor in the minor’s presence but without the minor’s signature.
  • The minor’s legal guardian or the minor’s parent merely co-signs the agreement. This signifies the assistance provided by the legal guardian or parent.
  • The aforementioned is evident in the Children’s Act 38 of 2005, where a legal guardian of the minor or biological parent enjoying full rights and responsibilities over the minor must provide written consent for the minor to enter into a lawful marriage.
  • Where there is more than one legal guardian or biological parent having full rights and responsibilities over a minor child, all relevant guardians and biological parents must provide their written consent, as envisaged in Section 18(5) of the Children’s Act 38 of 2005.
  • Above and beyond the assistance of the legal guardian or parent, the written consent of the Minister of Home Affairs is required for females under the age of 15 years and males under the age of 18 years.

What if the Formalities for a Minor Cannot be met?

  • If a minor is an orphan or any other reasonable cause may exist why the legal guardian or parent of the minor cannot consent to the marriage, the Commissioner of Child Welfare may provide written consent for a marriage to be entered into and an antenuptial agreement to be entered into.
  • An application to the High Court can be made to request a High Court Judge to order consent for the marriage to be contracted where merits exist, such as the Commissioner of Child Welfare has refused consent or any other reasonable reason.

Can a Legal Guardian or Parent Declare a Marriage Illegal if no Consent was Given?

  • In terms of the Marriages Act 25 of 1961, if the necessary consent was not obtained before the conclusion of the marriage, the marriage will still be lawful and valid; however, it may be dissolved by a court order.
  • Either the legal guardian, parent or the minor who has entered into the marriage may approach a court to seek that the marriage be declared void.
  • Hence, should the necessary formalities not have been followed, or if there is a shortage in the consent that had to be obtained, the marriage is deemed to be voidable.
  • In contrast to the Marriages Act, the Recognition of Customary Act 120 of 1998 stipulates that the Minister of Home Affairs may declare the marriage to be lawful if the necessary consent was not obtained.
  • The Minister of Home Affairs shall endeavour to answer the question of whether the marriage is in the interests of all the interested parties and if it is desirable.
  • Should the Minister of Home Affairs declare the marriage to be valid, the marriage is still deemed to be voidable as it may be dissolved by an interested party who may approach a competent court to declare the marriage unlawful.

Does a Minor Need an Attorney to Register an Antenuptial Agreement?

Yes. Not only are there distinct formalities to meet to ensure the lawful registration of an antenuptial agreement, but:

  • You need to understand your options as an adolescent under 18 years old;
  • You need to know your rights and responsibilities as a legal guardian or parent having full rights and responsibilities;
  • You need to make sure that your affairs are in order before jumping the broom.

Our attorneys at Burger Huyser Attorneys are fluent in the language of Family Law and understand your needs regardless of your age, gender, background, or preference. We are well-versed in providing professional legal advice before a life-changing event such as marriage and thereafter. Contact our marriage and antenuptial contract attorneys today to assist you with your legal marital-related matters.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE