Written by Karisha Singh
2 February 2024

What Is A Putative Marriage?

A putative marriage arises when one or both parties think that they are entering into a valid marriage at the time of their marriage; however, they were unaware of a defect that affected the validity of their marriage. The dissolution of putative marriages is an area of law that has been rarely dealt with, with only a handful of reported cases of its nature.

While the law surrounding putative marriages in South Africa seems to be clear-cut, legal practitioners around the country have had to rely solely on common law sources to deal with putative marriage actions properly. The common law, however, does guide practitioners and the public alike on the requirements of putative marriages and the legal consequences that arise from them.

A common issue that courts face in customary marriage disputes is determining whether a valid customary marriage has indeed been concluded. Parties that argue for the validity of a customary marriage may rely on a claim for a universal partnership or putative marriage as an alternative way to protect themselves in cases where the validity of such a customary marriage is disputed.

What Constitutes a Valid Putative Marriage?

A putative marriage exists in cases where one or both parties were unaware that, at the time of concluding their marriage, there was a defect that affected the validity of their marriage and that they concluded their marriage in good faith.

In other words, even if you concluded a marriage in good faith and were unaware of a defect that affected its validity, the marriage will be classified as a putative marriage. In this case, the court will assess the sincerity of each party, or at least one of the spouses, to determine the existence of a putative marriage.

It is important to note that Hindu and Muslim marriages are not qualified as putative marriages. Innocent parties should, therefore, instead opt for alternatives such as relying on the cultural requirements for a valid marriage or claiming for a universal partnership.

What are the Requirements of a Putative Marriage?

The requirements for a valid putative marriage were set out in the case of Zulu v Zulu and Others (17413/2005) [2008] ZAKZHC 10; 2008 (4) SA 12 (D) (25 February 2008), as follows:

  • One party, at least, must have been ignorant of the impediment or defect not only at the time of the marriage but must also have remained ignorant of it during their lifetime.
  • The marriage must have been solemnised.
  • The marriage must have been considered lawful in the estimation of the parties or that party alleging bona fides.

What are the Legal Consequences of A Putative Marriage?

A putative marriage has some of the same consequences as a civil marriage, which include, but are not limited to:

  • A reciprocal duty of support exists between the spouses.
  • Any children born out of a putative marriage, where paternity is undisputed, are deemed to be children born of the married parents. Such children may, therefore, inherit the intestate estate of their parents.
  • Both parents will have full parental rights and responsibilities towards their children.
  • Where parties intended their marriage to be in or out of community of property, such a matrimonial system shall govern their marriage.

It is vital to note that if at least one party can show bona fides or good faith and no antenuptial contract is concluded, the marriage will be regarded as a marriage in community of property if it benefits that bona fide spouse.

What Damages Can Be Claimed by The Innocent Party in a Putative Marriage?

If one party was unaware of the defect due to misrepresentation by the other party, such an innocent party may have a claim for damages. This is so as not to disadvantage the innocent party despite the marriage being considered void.

If the other party does not have a civil spouse, the innocent party may claim for a division of the joint estate if it benefits that innocent party. In the event that one spouse is already in a prior civil marriage in community of property, the other spouse may only institute a claim for damages.

It is important to note that the onus of proof falls on the party or spouse who alleges they were sincere and believed that the marriage between the parties was valid. If this party claims for damages, they must prove that they were unaware that the other party was already married civilly.

Putative Marriage and Claiming for Damages

In conclusion, parties that enter into marriages that they believed were valid but were indeed found to be void may rely on a putative marriage. Putative marriages largely protect innocent parties that were unaware of any defects to their marriage, but most importantly, an innocent party that was induced into a marriage through false representations.

Contact one of Burger Huyser Attorneys’ family lawyers and specialists for assistance if you feel that you were tricked into a putative marriage and want to claim for damages.

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