Annulment of Marriages in South African Family Law: Grounds and Procedures
Marriages are a significant commitment, but there are circumstances under which a marriage can be annulled rather than going through a divorce. In South African family law, annulment is a legal process that declares a marriage null and void, essentially erasing it as if it never existed. In this article, we'll explore the grounds and procedures for annulment of marriages in South Africa.
Understanding Annulment
Annulment differs from divorce in that it treats the marriage as though it never happened, whereas divorce dissolves an existing marriage. Annulment is generally sought when there is a fundamental flaw or legal impediment in the marriage from the beginning. The term ‘annulment’ is not used in a South African legal context , rather the terms ‘void’ or ‘voidable’ are used.
Voidable vs Void Marriages
A voidable marriage is a marriage that is legally entered into, but which may be declared voidable by a Court of competent jurisdiction.
A void marriage never comes into existence from the very beginning due to some fundamental defect.
Grounds to Declare a Marriage Void
The grounds upon which a person can rely upon in South Africa to declare a marriage void are as follows:
Material Defect
Non-compliance with prescribed legal formalities
Non-compliance with material requirements and/or conditions
Material Defects
What constitutes a material defect in respect of a marriage in South Africa?
Fraud and Misrepresentation: If one party induced the other into the marriage through fraud, deception or misrepresentation (e.g. if one party concealed their true identity or lied about their intentions), this would constitute a material defect.
Prescribed Legal Formalities
What are the prescribed legal formalities for a marriage? The South African Marriages Act contains certain prescribed legal formalities which need to be complied with in order for a legally binding marriage to come into effect and which are as follows:
the marriage has to be solemised by a duly certified marriage officer
a witness needs to be present at the marriage
the parties being marriage need to be of legal marriage age, failing which proper consent from their parents or guardians will be required
Material Requirements and/or Conditions
What are the material requirements and/or conditions for a marriage? The South African Marriages Act contains certain prescribed material requirements and/or conditions for a legally binding marriage to come into effect and which are as follows:
No Existing Civil Marriage: A marriage can be annulled if one party was already married to another person at the time of the marriage (i.e. Bigamy or Polygamy is not allowed in civil marriages).
Mental Capacity: If either party lacked the mental capacity (e.g. due to mental illness) to understand the nature and consequences of the marriage contract at the time of the wedding.
Blood Relations: the spouses being married must be not related to one-an-another (there are prohibited degrees of relationships in this regard)
d a material defect in respect of a marriage in South Africa?
Void Marriages and Annulment Procedures
Since a void marriage never comes into existence from the beginning, it is not a strict requirement in South Africa to approach a Court for an order in this regard. However, the follow process is advisable:
Consultation with a Family Law Attorney: The first step is to consult with a specialist family law attorney, who will provide legal advice and assess whether your situation.
Declaratory Order: Depending on the facts, it may be necessary to obtain a declaratory order from a Court of competent jurisdiction for an order which declares that the marriage was void.
Voidable Marriages and Annulment Procedures
A voidable marriage is a marriage that is legally entered into, but which may be declared voidable by a Court of competent jurisdiction. Valid grounds need to exist in order to have a marriage declared voidable.
Consultation with a Family Law Attorney: The first step is to consult with a specialist family law attorney, who will provide legal advice and assess whether your situation.
Application to Court: An application will need to be made to a Court of competent jurisdiction for an order which declares that the marriage was voidable and setting same aside.
Conclusion
Annulment in South African family law provides a legal remedy for marriages that should not have occurred due to various grounds, such as bigamy, fraud, or lack of consent. It is essential to consult with a qualified family law attorney to navigate the annulment process effectively. Understanding the grounds and procedures for annulment can help individuals make informed decisions when considering this legal option.
Barter McKellar’s family law attorneys have extensive experiencing on advising on applications of this nature. If you would like to find out more, contact our offices today to schedule a consultation.