A divorce in South Africa ends a marriage, and a marriage is the legal relationship between two people. A “divorce” cannot exist where there is no marriage to end, but the practical question often arises when the validity of the marriage is in dispute. The court can make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce. The route to the order depends on whether the marriage is void, voidable, or non-existent.
This page explains how the court deals with a “divorce” where the marriage is not valid, the procedural steps, and the practical process to follow. If you need help with a marriage or divorce matter, our Sandton-based Family Law team can assist.
What the Divorce Act says
The Divorce Act 70 of 1979 deals with the divorce of a marriage, and the Act does not apply where there is no marriage to divorce. The court can, however, make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce.
The order is made by the court on the application of either party, and the court will consider the application and decide whether the marriage is valid. The court will weigh the evidence and decide whether the marriage is void, voidable, or non-existent.
When the marriage is not valid
The marriage is not valid where the parties are not legally able to marry, where the marriage is not properly entered into, or where the marriage is not registered. The court will consider the application and decide whether the marriage is valid, and the order will depend on the specific facts of the matter.
The most common situations that give rise to a void marriage are listed below in the order they usually appear in practice.
- One of the parties is already married to another person, and the marriage is therefore bigamous.
- The parties are too closely related to marry, and the marriage is therefore incestuous.
- One of the parties is under the age of consent, and the marriage is therefore void.
- One of the parties is not of sound mind, and the marriage is therefore void.
How the court makes a declaratory order
The court makes a declaratory order on the application of either party. The application is filed at the High Court, and the matter is set down for hearing. The court hears the application, considers the evidence, and decides whether the marriage is valid.
The court will weigh the evidence and decide whether the marriage is void, voidable, or non-existent. The court will also consider the consequences of the order, including the rights of the parties under the matrimonial property regime.
What the order does
The order has the same practical effect as a divorce. The order is recorded in the court file, and the parties are free to remarry. The order is also registered with the Department of Home Affairs, and the parties’ marital status is updated to reflect the order.
The order is final when granted, and the parties cannot appeal the order on a question of fact. The order can be appealed on a question of law, but the appeal has to be lodged within a reasonable time of the order.
What happens if the marriage is voidable
Where the marriage is voidable, the court can make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce. The court will consider the application and decide whether the marriage is void, and the order will depend on the specific facts of the matter.
The most common situations that give rise to a voidable marriage are listed below in the order they usually appear in practice.
- One of the parties was under duress at the time of the marriage, and the marriage is therefore voidable.
- One of the parties was fraudulently induced to enter into the marriage, and the marriage is therefore voidable.
- One of the parties was incapable of consenting to the marriage, and the marriage is therefore voidable.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the evidence. The court will not make a declaratory order on bare assertions, and the party applying for the order must prove the case.
- Assuming the marriage is void. The court will weigh the evidence and decide whether the marriage is void, and the parties should not assume the outcome.
- Skipping the supporting documents. The court will not make a declaratory order without the supporting documents.
- Letting the dispute escalate. The right path is to engage with the other party and apply for the declaratory order where appropriate.
- Quitting the process before the order is granted. The order is not final until the court grants the order.
Frequently Asked Questions
How can there be a divorce when there is no marriage in South Africa?
A divorce in South Africa ends a marriage, and a marriage is the legal relationship between two people. A divorce cannot exist where there is no marriage to end, but the practical question often arises when the validity of the marriage is in dispute. The court can make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce.
What is a void marriage in South Africa?
A void marriage is a marriage that is not valid from the start. The most common situations are bigamy, incest, age of consent, and lack of sound mind. The court can make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce.
What is a voidable marriage in South Africa?
A voidable marriage is a marriage that is valid until it is set aside. The most common situations are duress, fraud, and incapacity to consent. The court can make a declaratory order that the marriage is void, and the order has the same practical effect as a divorce.
How does the court decide whether a marriage is valid?
The court decides whether a marriage is valid by weighing the evidence and applying the law. The court will consider the parties’ ages, the parties’ mental capacity, the parties’ consent, and the formalities of the marriage. The court will then decide whether the marriage is void, voidable, or non-existent.
Can the validity of a customary marriage be challenged?
Yes. The court can make a declaratory order that the customary marriage is void, a decision that is part of the customary marriage ruling and has the same practical effect as a divorce. The court will weigh the evidence of the marriage and decide whether the marriage was valid under the customary law.
What happens if the marriage is non-existent?
Where the marriage is non-existent, the parties are not legally married, and the court can make a declaratory order that the marriage is non-existent. The order has the same practical effect as a divorce, and the parties are free to remarry.
Do I need a lawyer to challenge the validity of a marriage in South Africa?
Yes. The challenge to the validity of a marriage is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected. A lawyer can help the parties understand the law and prepare the application.
Get help with your matter. If you need help with a marriage or divorce matter, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about the “divorce” of a non-existent marriage in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant marriage laws are set out in the Divorce Act 70 of 1979 and the Marriage Act 25 of 1961, both of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.