Written By Andrea Hiestermann
Dated 28 December 2022
Annulment is known as the process whereby a marriage that was entered into is declared to have never come into existence.
In South Africa, we do not use the term annulment. Instead, we use the terms ”void” and ”voidable” to describe what is known as an annulment.
What is a Void Marriage?
A void marriage is seen as a marriage that never came into existence and does not have any of the legal consequences of marriage attached to it.
A marriage is declared void through:
- non-compliance with formal requirements;
- non-compliance with material requirements; or
- due to a fatal defect.
What are The Formal Requirements of Marriage?
The Marriages Act 25 of 1961 lists the formal requirements of marriage as:
– The marriage needs to be solemnised by someone who is a marriage officer.
– No minor under the age of 16 for girls and 18 for boys may marry without the written consent of their guardians or parents.
– There needs to be a witness at the ceremony.
What are the Material Requirements of Marriage?
The Marriages Act 25 of 1961 lists the material requirements of marriage as:
– There must be no existing civil marriage to someone else.
– Neither of the parties must be mentally ill.
– Neither of the parties must be related to each other within the prohibited degree of relationships.
What is a Defect of Marriage?
A fatal defect is seen as an extreme error. An example of this is when a marriage was entered into mistakenly, whereby a party to the marriage was mistaken by the identity of the agreement, i.e., one of the parties was not aware they were entering into a marriage, or there was a case of mistaken identity of one of the parties.
What Are The Consequences Of A Void Marriage?
There are no consequences to a void marriage, as it will be seen as though the marriage never existed. In the case of void marriages, there is no right to spousal maintenance, and the combined estate of the spouses will not be divided upon divorce.
Will I need to approach the court in the case of a void marriage?
No, you will not need to approach the court in the case of a void marriage, as the marriage will automatically be considered void. However, it is advisable to seek legal advice and get a declaratory order to avoid any legal complications in the future.
What is a Voidable Marriage?
A voidable marriage is one that was legally entered into for all purposes unless the court grants it voidability.
The court can declare the marriage void on the grounds of a defect that a party to the marriage was not aware of at the time of entering the marriage.
What Are Considered Defects in a Voidable Marriage?
The Marriages Act 25 of 1961 considers the following as defects in a voidable marriage:
- Minority: No minors may enter into marriage; however, for a marriage to be considered voidable, one of the parties to the marriage must have been unaware that the other was under the age to legally marry without the consent of their guardian at the time of the marriage.
- A material mistake: One or both of the parties was unaware of the following when they entered into the marriage:
– One of the parties has an existing civil marriage to someone else.
– One of the parties is mentally ill.
– The parties are related to each other within the prohibited degree of relationship.
- Stuprum: If the wife is pregnant with another man’s child when the marriage takes place. This defect is only valid if the husband was unaware that the unborn child was not his at the time of entering the marriage.
- Impotence: when one of the parties is unaware of the other party’s inability to have sexual intercourse at the time of entering the marriage.
- Sterility: when one of the parties was unaware of the other party’s inability to procreate when they entered into the marriage.
What are the Consequences of a Voidable Marriage?
A voidable marriage will be seen as a valid marriage until the court has declared it void; therefore, a court order is essential if you want to declare a voidable marriage invalid (void).
Once the voidable marriage has been declared void by the courts, it will be seen as if no marriage existed in the first place, and the parties will be in the same position as they would have been if the marriage never took place.
What is the Difference Between Void And Voidable Marriages?
The difference between a void and voidable marriage is that a void marriage is automatically invalid due to non-compliance with the requirements of marriage or a fatal defect.
A voidable marriage, on the other hand, is considered a valid marriage until it has been declared invalid by the courts due to a defect. A voidable marriage will not be declared void by the courts if either of the parties were aware of the defects before or at the time of the marriage, or if a party to the marriage became aware of and accepted the defects after the marriage was entered into. In other words, a voidable marriage will only be declared invalid if the party was unaware of one of these defects when entering into the marriage, and when they became aware of a defect, there was no prospect of restoring the relationship.
If you suspect that your marriage is void or voidable, do not hesitate to contact one of Burger Huyser Attorneys’ family law specialists for assistance.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
