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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2019-11-08
What's the difference between annulment and divorce

A divorce is the dissolution of a marriage as set out in terms of the Divorce Act 70 of 1979 and the estates and assets of a couple are divided according to their type of marital system. An annulment on the other hand puts the parties in the position as if there was no marriage in the first place.

The circumstances under which an annulment may be allowed is found in the Marriage Act 25 of 1961. Two types of marriages can be annulled, a void and a voidable marriage. A marriage is considered void if one of the parties was a minor (and there was no consent by the guardians), or one of them was mentally insane, or already married at the time (if polygamous marriages was not applicable) or if the parties were closely related to each other which made the relationship incestuous, or the marriage officer was not authorised to marry the couple.

A voidable marriage means that there must be some form of misrepresentation, fraud or intimidation, which resulted a marriage being entered into. An interesting case came before the Western Cape High Court on 30 October 2019, where a woman issued a divorce summons, citing not only the husband but also his parents as co-trustees of a trust.

The woman wants the court to annul her marriage and is claiming R9 million in damages for the emotional trauma she says she suffered as well as loss of income and "financial prejudice". The reason for her pain and suffering she says, stems from the fact that when she married her husband she believed him to be a heterosexual male, that they would be in a monogamous union and have children.

She said that this was not the case and she discovered he was gay some six years after marriage, when he informed her of his sexual orientation. The court has not yet decided on the validity of her claims as the divorce is yet to be finalised, but she went to court claiming interim monetary relief.

She did this by bringing a Rule 43 application in which she asked that her husband and in laws contribute towards her legal costs in the main divorce action. Her legal representatives were supposed to ensure the Rule 43 application papers are succinct and short.

They failed to do so. The court was unimpressed that her Rule 43 application papers were so voluminous. As a demonstration of the court's displeasure it ordered that her legal representative pay the husband's costs out of his own pocket. The court also ordered that the matter could only be re-enrolled once the papers were in line with the high court practice directives. Whether or not she will succeed on the main action of having the marriage annulled and being awarded damages of R9 million remains to be seen.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the power of attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal advice at competitive rates.