What Is The Meaning Of Voidable Marriages In South Africa?

A voidable marriage in South Africa is a marriage that is legally valid and binding until a court declares it void — it exists in the eyes of the law until set aside, which distinguishes it from a void marriage, which is treated as if it never existed at all. The four grounds on which a marriage may be declared voidable are set out in section 24 of the Marriage Act 25 of 1961: lack of free and voluntary consent by either party to the marriage; either party being below the minimum marriageable age without the required consent of a parent or guardian; marriage within the prohibited degrees of consanguinity, affinity, or adoptive relationship; and the inability of either party to consummate the marriage. A voidable marriage can only be set aside by a court order on application, and the application is typically brought in the regional court for the district where the marriage took place or where the parties reside, or in the High Court where the relief is sought in conjunction with other relief outside the regional court’s jurisdiction.

What “Voidable” Means in South African Marriage Law

A voidable marriage is one that is valid and binding in every respect until a court declares it void. While the marriage stands, it carries its full legal consequences — the marital property regime, the duty of spousal support, the presumption of paternity of children born of the marriage, and the inheritance rights of a surviving spouse. The marriage is only set aside once a competent court makes an order under section 24 of the Marriage Act 25 of 1961.

The distinction from a void marriage is fundamental. A void marriage is treated as having never existed at all — no court order is needed for it to have no legal effect. A voidable marriage, by contrast, does exist and produces legal consequences until it is set aside. The practical upshot is that a person who is party to a voidable marriage is treated as a spouse for every purpose — including maintenance, property, and status — until a court order changes that. Anyone who needs to understand the practical consequences of an annulment should keep this distinction firmly in mind, because the downstream effects on property, children, and inheritance flow directly from it.

The Legal Framework: The Marriage Act 25 of 1961

The controlling statute for civil marriages in South Africa is the Marriage Act 25 of 1961. It sits alongside the Recognition of Customary Marriages Act 120 of 1998 (which governs marriages celebrated under customary law) and the Civil Union Act 17 of 2006 (which governs civil unions, including same-sex marriages).

Within the Marriage Act, two sections do most of the work on voidable marriages:

• Section 24 sets out the four grounds on which a marriage may be declared voidable.
• Section 26 governs the procedure and time limits for bringing an application to have a voidable marriage declared void.

The Act applies uniformly across South Africa. There is no provincial variation in the grounds or the procedure — the same four grounds, and the same procedural rules, apply whether the parties live in Johannesburg, Cape Town, Durban, or a small town in the Northern Cape.

The Four Grounds for Declaring a Marriage Voidable

Section 24 of the Marriage Act 25 of 1961 sets out four distinct grounds. A marriage is voidable — and only voidable — if one of these grounds is present and a court is asked to set it aside.

Ground	What it covers
Lack of free and voluntary consent	Either party did not genuinely consent to the marriage. This includes consent obtained by force, duress, fraud, or material misrepresentation about a matter that goes to the essence of the marriage. Being under the influence of intoxicating liquor or drugs at the time of the marriage is also captured here because such a state negatives genuine consent.
Below the minimum marriageable age	Either party was under 18 at the time of the marriage without the written consent of a parent or guardian (or, in the absence of a parent or guardian, a commissioner of child welfare). A marriage involving a minor without the required consent is voidable — not void — and the parties remain spouses until a court sets the marriage aside.
Prohibited degrees of relationship	The parties are related within the prohibited degrees of consanguinity (blood), affinity (by marriage), or adoptive relationship. The schedules to the Marriage Act specify the precise prohibited degrees; the most obvious example is a marriage between a person and their parent, child, or sibling.
Inability to consummate the marriage	Either party was, at the time of the marriage and continues to be, incapable of consummating the marriage. The incapacity must be one that cannot be remedied and was not disclosed to the other party before the marriage.

Who Can Apply to Have a Marriage Declared Voidable

The grounds that go to consent — lack of free consent and prohibited degrees — can typically be raised by either spouse, and in some circumstances by a person with a sufficiently direct interest (for example, a parent where the marriage involved a minor).

The ground of non-age can be raised by either spouse, by a parent or guardian of the minor spouse, or by a person who would have had the right to consent to the marriage. The ground of inability to consummate is typically raised by the spouse alleging the incapacity, although the parties’ shared interest in setting aside the marriage means it is most often raised by mutual application.

In every case, the court has a discretion to refuse to set aside a marriage even where a ground is made out. This is particularly so where the marriage has subsisted for some time, where the parties have acted on the marriage (acquired property, had children), or where setting the marriage aside would cause manifest injustice.

Time Limits and Procedural Requirements

The Marriage Act does not prescribe a fixed limitation period for bringing an application to have a voidable marriage set aside. What the Act requires — and what case law has consistently confirmed — is that the application be brought within a reasonable time after the applicant became aware of the ground.

Delay matters. The longer the marriage has subsisted and the more the parties have acted on it, the more reluctant courts can be to set it aside. Delay is one of the factors the court weighs in deciding whether to grant the order, and a long delay may in itself be a reason for the court to refuse relief in its discretion.

Procedurally, the application is brought by way of a notice of motion supported by founding and (where necessary) answering affidavits, in:

• the regional court for the district where the marriage took place, or where the parties reside; or
• the High Court, where the relief is sought together with other relief outside the regional court’s jurisdiction.

The application is ordinarily served on the other spouse and, where the ground involves a minor, on the parent or guardian concerned. The standard of proof is on a balance of probabilities.

The Process of Having a Voidable Marriage Set Aside

1. Consult a family law attorney to identify which of the four section 24 grounds applies and whether the application is likely to succeed within a reasonable time.
2. Gather supporting evidence — for lack of consent, medical or psychological reports, witness statements, evidence of duress or fraud; for non-age, birth certificates and proof of absence of parental consent; for prohibited degrees, family trees or formal kinship proof; for inability to consummate, specialist medical evidence.
3. Draft and issue the application (notice of motion, founding affidavit, supporting affidavits and annexures) in the regional court or High Court with jurisdiction.
4. Serve the application on the other spouse and any necessary respondents (parent or guardian, where applicable).
5. Wait for the response period to expire, or for the respondent to file an answering affidavit.
6. Attend the hearing — the court considers the evidence and determines whether the marriage should be declared void on the balance of probabilities.
7. Obtain the court order; once granted, the marriage is treated as having been void from the date of the court order (not retroactively, unlike a void marriage).

Practical Effects: What Happens After a Court Declares the Marriage Void

The marriage is treated as having been dissolved from the date of the court order. Spousal maintenance obligations fall away from that date forward, although obligations that accrued before the order remain due. The proprietary consequences depend on the matrimonial property regime that applied:

Matrimonial property regime	Effect of the order
In community of property	The joint estate is wound up; the accrual-style division that would normally follow a divorce applies to assets and liabilities built up during the subsistence of the marriage.
Out of community of property with accrual	The accrual claim is determined as at the date of the order; the antenuptial contract governs how the accrual is split.
Out of community of property without accrual	Each party retains their separate estate; there is no accrual to divide. Assets held in each party’s name remain theirs, subject to any direct contribution claims.

Children born of the marriage are not affected. They remain the legitimate children of the parties under the Children’s Act 38 of 2005, and the mother’s husband is presumed to be the father, regardless of whether the marriage is later declared void. Parental responsibilities and rights, and any maintenance owed in respect of the children, continue unaffected.

Inheritance and beneficiary nominations made during the subsistence of the marriage may need to be revisited — particularly nominations in favour of a spouse in a pension fund or life policy, which lose their basis once the marriage is set aside. Where a will was made during the subsistence of the marriage, a subsequent will or codicil may be needed to deal with the change in circumstances.

What to Look for When Choosing an Attorney for This Work

A voidable-marriage application turns on evidence. The right attorney for this work should be able to:

• identify which of the four section 24 grounds actually applies to the facts, and give an honest view on whether the application is likely to succeed;
• advise on the time limit issue up front, rather than running an application that delay will defeat;
• marshal the supporting evidence — medical, kinship, or documentary — that the chosen ground requires;
• choose the correct forum (regional court versus High Court) and prepare the application to that forum’s rules;
• give a realistic cost and prospects conversation at the consultation, not a loose estimate.

Burger Huyser Attorneys’ Family Law Department — led by Director Anna-Mi Nel — runs these files out of the firm’s Linden head office and across its Gauteng branches, and is set up to give exactly that kind of candid, evidence-led advice on whether a section 24 application is worth bringing.

Frequently Asked Questions

What is the difference between a void and a voidable marriage in South Africa?

A void marriage is treated as never having existed in law, while a voidable marriage is legally valid until a court declares it void. Void marriages are governed by section 23 of the Marriage Act 25 of 1961 (and the corresponding provisions of the Recognition of Customary Marriages Act and the Civil Union Act); voidable marriages are governed by section 24. In practical terms, a void marriage needs no court order to have no legal effect, while a voidable marriage exists and produces legal consequences until it is set aside.

What are the grounds for a voidable marriage in South Africa?

Section 24 of the Marriage Act 25 of 1961 sets out four grounds: lack of free and voluntary consent by either party; either party being under 18 at the time of the marriage without the required parental or guardian consent; marriage within the prohibited degrees of relationship (consanguinity, affinity, or adoptive relationship); and the inability of either party to consummate the marriage, where the incapacity is irremediable and was not disclosed.

How long do you have to have a voidable marriage set aside?

There is no fixed limitation period in the Marriage Act, but the application must be brought within a reasonable time after the ground became known. Delay is one of the factors the court weighs in deciding whether to grant the order, and the longer the marriage has subsisted and the more the parties have acted on the marriage, the more reluctant courts can be to set it aside.

Can a voidable marriage be set aside by agreement between the spouses?

No. A voidable marriage can only be set aside by a court order. The parties can jointly approach the court by way of a consent order where both agree that one of the section 24 grounds exists, but the court still has to be satisfied that the ground is made out and that it is just to grant the order; a court is not bound to grant a voidable decree merely because both parties seek one.

Are children from a voidable marriage affected when the marriage is declared void?

No. Children born of a voidable marriage remain the legitimate children of the parties under the Children’s Act 38 of 2005, and the mother’s husband is presumed to be the father. The declaration that the marriage is void does not affect parental responsibilities, rights, or the children’s status, and any maintenance obligations owed in respect of the children continue.

What does a voidable marriage cost to set aside in South Africa?

Costs depend on whether the matter is unopposed or opposed, on the evidence required to prove the particular section 24 ground, and on which court is approached. An unopposed application on the ground of non-age or prohibited degrees typically costs less than a contested application on lack of consent or inability to consummate, both of which usually require expert and medical evidence. Burger Huyser Attorneys provides a per-matter cost estimate after the initial consultation.

If you think your marriage — or a marriage you are party to — may be voidable under section 24 of the Marriage Act 25 of 1961, Burger Huyser Attorneys’ Family Law Department can advise on whether any of the four grounds applies, on the likely prospects of an application, and on the practical consequences for property, children, and inheritance. The firm practises from its Linden head office and across its Gauteng branches — Sandton (011 253 3080), Pretoria (012 471 5700), Centurion (012 644 4990), Bedfordview (011 201 7190), Roodepoort (011 668 0030), Alberton (011 439 3990), Midrand (010 022 4082) — and carries a 4.8/5 average across 250+ Google reviews. Initial consultations are booked through the branch nearest to you; the firm will give an honest cost and prospects conversation up front rather than a loose estimate.