The parties must have the necessary capacity to enter into a marriage or be properly assisted where assistance is required.
For marriages under the Marriage Act, 1961, the situation is as follows: minors under the age of puberty are not legally allowed to marry at all.
Minors, between the age of puberty and the age of majority, require the consent of both parents or a guardian to marry. Where the minor has only one parent living, only that parent’s consent is required. Where the minor has a guardian, the guardian’s consent is required.
Where the minor has no parents and no guardian, consent must be obtained from the Commissioner of Child Welfare/’ The commissioner will also be able to provide the necessary consent where a minor, for good reason, is unable to obtain consent, for instance where the parent is insane, cannot be found or unreasonably refuses to give consent.0 Additional consent is required from the Minister of Home Affairs where the male minor is under the age of 18 and the female under the age of 15.
For marriages and civil partnerships under the Civil Union Act, 8 the age of consent is 18
At common law insane persons lack the capacity to enter into a valid marriage.1 Their lack of capacity extends to the capacity to enter into the juristic act of marriage where they are incapable of making any rational decisions with regard to the marriage contract, or incapable of understanding the nature of the juristic act and the obligations marriage creates. It is the lack of understanding that deprives a person of capacity, not the cause of the lack of understanding. The onus of proof will be on the person alleging the incapacity. Such a marriage will be a void marriage.
Both parties must have the intention to conclude a marriage as understood by the law. This is evidenced by their declarations to the marriage officer during the marriage ceremony. Consensus will be excluded by a material mistake as to the identity of the spouse or the nature of the juristic act; duress or undue influence; or prenuptial stuprum.
Persons within the prohibited degrees of relationship
Relationship of consanguinity
The law prohibits marriage between certain blood relations, which is known as a relationship of consanguinity. A marriage between a person and his other ascendants or descendants (blood relations in the direct line such as a parent, grandparent, child, grandchild), is prohibited. Collateral blood relations are prohibited from marrying where one of the parties is within one degree of the common ancestor. A person may thus not marry a sibling, aunt or uncle, niece or nephew. Marriages within these prohibited degrees of relationship are not valid and is in fact void.
Formalities for entering into a valid marriage
The formal requirements for entering into a valid marriage are contained in the Marriage Act (25 of 1961) and the Civil Union Act (17 of 2006)
The marriage must be solemnised by a duly appointed marriage officer.
Each party must produce an identity document or an affidavit in the prescribed form.
A minor must produce written consent of his or her parent(s) or guardian.
The marriage must be solemnised by the marriage officer according to the prescribed formula in the presence of the two parties to the marriage and in the presence of two witnesses.
All marriages must be registered.
If the prescribed formalities are not complied with, the marriage is void.