Whatshot

2026
2025
November
2024
June
April
2023
March
2022
2021
2020
March
February
2019
December
November
October
September
August
July
June
May
April
March
February
2018
December
November
October
September
August
July
June
May
April
March
February
2017
December
November
October
September
August
July
June
May
April
March
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013
December
November
October
September
August
July
June
May
April
March
February
January
2012
December
November
October
September
August
July

Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-08-07
One of the most important elements for a valid marriage is that both parties must be fully aware that they are getting married and by extension must know the duties and responsibilities, which a marriage creates. Obviously they must also consent to getting married.

A marriage where one or both individuals did not know and could not appreciate what was happening at the time of the marriage ceremony cannot make an informed consent.

This means a person cannot be validly married if he or she is under the influence of drugs or alcohol to such an extent that it is impossible to give consent.

Mental defect per se will not prevent a person from concluding a marriage contract, provided he or she fully understood that they were getting married. In this instance, the marriage would be lacking validity and could be set aside or annulled.

A case touching on lack of informed consent came before the High Court in the Western Cape in late July 2015 where the court was asked to set aside a marriage contract concluded between an elderly professor (who subsequently passed away) and his care giver of four years. He suffered from Parkinson's disease.

The daughter of the deceased applied to court for an order declaring the marriage of her late father to the caregiver be declared null and void. The caregiver opposed the application.

The court heard that in 2013 the health of the late professor deteriorated and he needed full time care. The caregiver took care of the professor's health and also performed chores such as his shopping and took him to the bank.

The family told the court that they had no knowledge of any romantic relationship between the caregiver and their father. They said that they only became aware of the marriage when they were alerted to it through the professor's bankers, who noted certain "unusual activity" in his bank account.

All of his financial affairs were done without any direct involvement or discussion by the deceased. The marriage officer testified that on the day of the ceremony she noticed that the deceased was elderly, frail and shaking. None of his family members were present and only a family member of caregiver was present.

She said the man appeared disorientated and was told that the deceased had dementia. Although she had concerns about the deceased's state of mind, she was instructed by her supervisor at the Department of Home Affairs to proceed with the marriage ceremony.

The caregiver argued that since 2009 she and the deceased formed a romantic relationship, which was known to the children of the deceased. She testified that the deceased voluntarily entered into the marriage but said that he did not want any of his family to know of the marriage as they would disapprove. She said that the deceased was fully aware of the marriage but was shaking to the Parkinson's disease, which he was afflicted with. She denied squandering the deceased's assets and said the funds withdrawn was used for his benefit.

The court also heard expert medical testimony from various medical specialists who managed the deceased health whilst he was alive. The court then ruled that at the time the deceased 'married' the caregiver, he was unable to understand the nature of the marriage contract he was entering into the marriage.

Consequently the marriage was declared to be null and void. The Court further held that the void marriage did not give any ownership or any other rights in any portion of the deceased's estate to the caregiver.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.