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A determination on whether a marriage is valid or not usually becomes key during succession, insurance claiming or divorce proceedings. Not that outside these processes such a determination is unimportant, but that parties have less reason to query such. As an example, where a person dies intestate (without a valid Will) it becomes critical to determine if the deceased was party to a valid marriage or not. In this article, we will discuss the differences between void and voidable marriages, as most people are not familiar with what the difference between the two is.

Some ‘marriages’ never came into existence because either they did not comply with the formal requirements for a valid marriage or because of a material defect, whereas some are valid for all intents and purposes until they are annulled by the Courts. This synopsis is fundamental in order to understand the difference between a void and a voidable marriage.

Void marriage

A void marriage is one which never came into existence either by non-compliance to formal requirements as per the Marriages Act 25 of 1961 or owing to a fatal defect. An example of a void marriage is whereby a person who is a spouse in a subsisting civil marriage, concludes a marriage with another person. The second marriage never comes into existence and no legal consequences of marriage will accrue, because civil marriage is to the exclusion of any other person except the two spouses. The Courts have no discretion to declare a void marriage as valid, as was held in Ex Parte L 1947 (3) SA 50 (C) and Ex Parte Soobiah :In re Estate Pillay 1948 (1) SA 873 (N). However, where a minor gets married without the consent of the Minister of Home Affairs as per Section 26 of the Marriages Act 25 of 1961, such consent may be granted retrospectively.

Grounds that render a marriage void:

• One of the parties was below the age of puberty, mentally ill or mentally disabled at the time of the conclusion of the marriage;
• The parties are related to each other within the prescribed degrees of relationship;
• One of the parties is already married in a marital regime that prohibits a further marriage e.g. civil marriages;
• The marriage did not comply with formal requirements as per the Marriages Act of 1961 or the Civil Union Act 17 of 2006 e.g. solemnised by someone who is not a competent marriage officer, absence of two competent witnesses.

Voidable marriages

On the other hand, a “voidable marriage is a marriage in which grounds are present, either before or at the time of the wedding, on the basis of which the Court may be requested to set the marriage aside.”

Consequently, voidable marriages are indeed marriages until set aside by the Court on application. This therefore means, if no party makes an application for the annulment of the voidable marriage, it will remain in force.

The grounds upon which a marriage may be rendered as voidable, include the following:

• Minority
• Material mistake
• Duress
• Concealed existing pregnancy
• Impotence
• Sterility

A husband may apply to Court for the annulment of the marriage if the wife was pregnant with another man’s child and concealed this fact, at the time when the marriage was concluded, as was held in Smith v Smith 1939 CPD 125.

In conclusion, the key distinction between a void and a voidable marriage is that the former never came into existence whereas the latter, for all intents and purposes, is a marriage until set aside by the Court.

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