Putative Marriage Law In South Africa Explained

A putative marriage in South Africa is a marriage that is legally void but in which one or both spouses entered in good faith, believing the marriage to be valid. Under section 10A of the Matrimonial Property Act 88 of 1984, the good-faith spouse is treated as if the marriage were out of community of property for accrual purposes, and acquires the protections of the Maintenance of Surviving Spouses Act 27 of 1990 and the Intestate Succession Act 81 of 1987. The doctrine originates in Roman-Dutch law and was confirmed by the Appellate Division in Brink v Kemp NO 1956 (1) SA 219 (A); it is now codified in section 10A for marriages entered into after 1 November 1984. Children born of a putative marriage are legitimate for all purposes under the Births and Deaths Registration Act 51 of 1992.

What “Putative Marriage” Means Under South African Law

A putative marriage is a marriage that is void in law but was entered into in good faith by at least one spouse. The word putative comes from the Latin putativus, meaning “supposed” or “reputed” — the marriage is reputed by the parties to be valid, even though it is not. The term “void” means the marriage has no legal effect from the start (ab initio) because a statutory or common-law requirement for validity was not met.

The doctrine originates in Roman-Dutch law and was confirmed by the Appellate Division in Brink v Kemp NO 1956 (1) SA 219 (A). It is now applied as codified in section 10A of the Matrimonial Property Act 88 of 1984, which applies to marriages entered into after 1 November 1984. Before that date, the common-law position (as set out in Brink v Kemp NO) treated a putative marriage as one in community of property — a position significantly softened by the current statute.

When a Marriage Is Void in South Africa

A marriage may be void from the start for any of the following reasons:

• Bigamy — either party was already legally married at the time of the second marriage (Marriage Act 25 of 1961, section 30).
• Age and consent — either party was below the minimum legal age for marriage, and the required parental or court consent was not obtained (Marriage Act, sections 24 to 26).
• Unauthorised solemnisation — no duly authorised marriage officer solemnised the marriage (Marriage Act, section 2).
• Prohibited degree of relationship — the parties are within a prohibited degree of consanguinity or affinity (Marriage Act, section 29).
• Lack of consent or capacity — either party lacked the mental capacity to consent, or consent was obtained by duress, fraud, or mistake as to the identity of the other party.
• Customary marriage non-compliance — for customary marriages, failure to comply with the requirements of the Recognition of Customary Marriages Act 120 of 1998 (for marriages after the Act’s commencement in November 2000).

A void marriage is not the same as a voidable marriage. A void marriage never had legal effect at all, while a voidable marriage is valid and subsisting until set aside by a court order.

The Good-Faith (Bona Fide) Requirement

The putative marriage doctrine protects only the spouse who entered the void marriage in good faith — meaning genuinely and reasonably believing the marriage was valid. Good faith is assessed objectively: would a reasonable person in the position of the innocent spouse have believed the marriage was valid? This test comes from Brink v Kemp NO and remains the controlling standard.

Examples that may defeat a good-faith claim include the spouse knowing the other party was already married, knowing the formalities had not been observed, or proceeding despite obvious irregularities. Importantly, knowledge of the irregularity by one spouse does not automatically defeat the other spouse’s good-faith claim — each party’s belief is assessed separately. Both spouses can be in good faith, or only one; the doctrine turns on the position of the spouse claiming the protection.

Section 10A of the Matrimonial Property Act — The Accrual Claim

Section 10A(1) of the Matrimonial Property Act 88 of 1984 applies to marriages entered into after 1 November 1984. Where a marriage is void and one or both parties entered in good faith, the marriage is treated as if it were out of community of property for purposes of accrual, unless an ante- or postnuptial contract had been executed (in which case that contract applies).

The good-faith spouse acquires the right to claim half the accrual in the joint estate — that is, half the growth in the combined estates of the spouses from the date of marriage to the date of dissolution. Section 10A(2) makes clear that the marriage does not automatically convert into one in community of property — only the accrual consequence flows. This is a significant departure from the pre-1984 common-law position in Brink v Kemp NO, where the entire marriage was treated as in community of property.

Void, voidable, and putative marriage compared

Aspect	Void Marriage	Voidable Marriage	Putative Marriage
Legal status	Never existed in law	Valid until set aside	Void, but good-faith spouse protected
Spousal rights (default)	None	Full, until annulment	Accrual claim under section 10A, plus maintenance and inheritance for the good-faith spouse
Children	Legitimate (per Births and Deaths Registration Act)	Legitimate	Legitimate
Court process	Declaratory order that marriage is void	Application for annulment	Declaratory order plus section 10A claim
Forum	High Court only	High Court (typically)	High Court only

Other Legal Consequences for the Good-Faith Spouse

Beyond the accrual claim under section 10A, the good-faith spouse acquires a number of downstream protections:

• Maintenance — under the Maintenance of Surviving Spouses Act 27 of 1990, the good-faith spouse of a void marriage is treated as a “surviving spouse” for purposes of claiming maintenance from the deceased spouse’s estate, even though the marriage is void.
• Inheritance — under the Intestate Succession Act 81 of 1987, a good-faith spouse from a void marriage inherits as if the marriage had been valid, where the deceased spouse died intestate.
• Will interpretation — under the Wills Act 7 of 1953, a bequest to a “spouse” may include a good-faith spouse from a putative marriage, depending on the will’s language and the surrounding circumstances.
• Estate duty — the spousal deduction under section 4(q) of the Estate Duty Act 45 of 1955 may apply to a good-faith spouse, depending on the facts.

Children of a Putative Marriage

Children born of a putative marriage are legitimate for all legal purposes — they have the same rights as children born of a valid marriage. This rule applies regardless of whether either parent was in good faith — the legitimacy of the child does not depend on the parents’ knowledge or belief about the marriage’s validity.

The Births and Deaths Registration Act 51 of 1992 governs the re-registration of a child’s birth following a court order confirming the void status of the parents’ marriage — children retain their legitimate status throughout. Children may also claim maintenance from both parents as if the marriage were valid, under the Maintenance Act 99 of 1998.

Void vs Voidable Marriages — A Critical Distinction

A void marriage has no legal effect from the start — it is treated as if it never existed, though the putative marriage doctrine protects the good-faith spouse. A voidable marriage is valid and subsisting until set aside by court order — examples include non-consummation, consent obtained by duress, or a party being of unsound mind at the time of marriage.

A voidable marriage produces full legal consequences (including accrual under an ante- or postnuptial contract if one exists) until it is annulled; a void marriage produces only putative marriage consequences. Both routes lead to a court order — but the starting point (valid versus invalid) is fundamentally different, and choosing the wrong route in pleadings can materially affect the relief available.

How to Resolve a Putative Marriage in Practice

1. Obtain a declaratory order — apply to the High Court (the division of the High Court with jurisdiction over the area where the parties reside) for an order declaring the marriage void. The Magistrate’s Court has no jurisdiction to determine the validity of a marriage.
2. Apply for section 10A relief — claim half the accrual in the joint estate (less any prior settlement or ante- or postnuptial contract that may apply) by way of a claim in the same or subsequent proceedings.
3. Settle or claim maintenance — under the Maintenance of Surviving Spouses Act (if the other spouse has died) or under common law (if both are alive).
4. Confirm children’s status — re-register children’s birth certificates through the Department of Home Affairs if required, confirming legitimacy.
5. Attend to inheritance — if the marriage was void from the start and no ante- or postnuptial contract was in place, the good-faith spouse still inherits as a putative spouse under the Intestate Succession Act.

Common Scenarios Where Putative Marriage Arises

Putative marriage issues arise in several recurring fact patterns in practice:

• Unregistered customary ceremony — a couple cohabits after a traditional lobola negotiation and a customary ceremony but never registers the marriage under the Recognition of Customary Marriages Act. If either party was already married under the Marriage Act, the customary marriage is void, but a good-faith spouse may still claim putative marriage protections.
• Marriage officer irregularity — a couple marries through a marriage officer who was not properly appointed at the time of the marriage. The marriage is void, but a good-faith spouse retains section 10A protection.
• Age and consent failure — one party was below legal age and parental consent was never obtained. The marriage is void, but a good-faith spouse (often the older party) may still claim section 10A protection.
• Bigamy — bigamy cases where the second marriage was entered into in good faith by the second spouse. The second marriage is void, but the second spouse’s putative marriage rights are protected.
• Legacy same-sex marriage issues — historical same-sex marriage scenarios before the Civil Union Act 17 of 2006 are largely closed by the Act’s enactment, but legacy determinations may still arise in estate disputes.

Why Engage a Specialist for a Putative Marriage Matter

A putative marriage determination typically crosses at least three legal disciplines — matrimonial property law, civil procedure (motion court practice), and the rules of evidence applicable to a declaratory application. Counsel must be able to plead the section 10A accrual claim with precision, marshal the documentary trail on which good faith turns, and run the matter in the correct High Court division.

Burger Huyser Attorneys’ Family Law team — headed by Director Anna-Mi Nel — runs putative marriage and matrimonial-property work in coordination with the firm’s general litigation practice. The firm’s Roodepoort branch, under Director Nadine Roesch-Prinsloo’s general litigation practice, handles declaratory applications of this kind as part of its broader High Court motion work. Together, the two teams cover both the matrimonial-property analysis and the motion-court procedural layer that a putative marriage matter requires.

Frequently Asked Questions

Is a putative marriage the same as a common-law marriage in South Africa?

No — South Africa does not recognise common-law marriage as a separate category. A “common-law marriage” is informal cohabitation, which has no legal recognition as a marriage. A putative marriage is a formally entered void marriage that still triggers legal consequences because of the good-faith doctrine.

Can I claim half the assets if my marriage was void?

Yes, if you entered the marriage in good faith. Under section 10A of the Matrimonial Property Act 88 of 1984, you may claim half the accrual in the joint estate as if the marriage were out of community of property — this is the standard accrual claim, applied to putative marriages.

Are children from a void marriage legitimate?

Yes — children born of a putative (void but good-faith) marriage are legitimate for all legal purposes under South African law, regardless of either parent’s knowledge or belief about the marriage’s validity.

Do I need a court order to confirm my marriage is void?

Yes — the validity of a marriage can only be determined by a competent court, which in South Africa is the High Court (the specific division with jurisdiction over the area where the parties reside). A Magistrate’s Court cannot make a declaratory order on marital status. The order is needed before section 10A and other putative marriage consequences can be formally invoked.

How long after the marriage ends can I still claim as a putative spouse?

The accrual claim under section 10A does not prescribe by a specific period — claims can be brought on dissolution of the marriage, on death, or in subsequent proceedings. However, the Maintenance of Surviving Spouses Act claim must be brought within a reasonable time of the deceased spouse’s death, and inheritance disputes under the Intestate Succession Act follow the Master’s office process.

Does a void marriage affect my ability to inherit from my spouse’s estate?

It can — if you were in good faith and your spouse died intestate, you inherit as a “surviving spouse” under the Intestate Succession Act 81 of 1987. If your spouse left a will, your claim depends on the will’s language — a bequest to “my spouse” may include you as a putative spouse depending on context. You should consult an attorney to assess your specific position.

If you are dealing with a marriage that may be void — because of bigamy, age, an unregistered customary ceremony, or an irregularity in solemnisation — Burger Huyser Attorneys’ Family Law team can advise on whether the putative marriage doctrine protects your position and run a High Court application for a declaratory order and a section 10A accrual claim where appropriate. Contact the head office in Linden on 011 888 0246 (after-hours 061 516 6878) or visit 49 First Avenue, Linden, Randburg; Pretoria-side matters can be routed through the Menlyn office on 012 471 5700. The firm is multi-specialist, with Family Law, Divorce Law, and Litigation practices that field these matters together, and carries a 4.8/5 average across 250+ Google reviews (Trustindex verified). The firm has been recognised for family-law work with multiple awards including Best Family Law Firm 2024 (Lawyers Monthly Legal Awards) and Family Law Firm of the Year 2024 (MEA Business Awards). Initial consultations cover eligibility for putative marriage protection, likely accrual claim value, and the practical steps involved.