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Marriage Law Essay

1701 Words7 Pages

Question 1

1a) According to Heaton(2010,pg15),”a civil marriage may be defined as a voluntary union entered into by one man and one woman who have the necessary legal capacity and who are competent to marry(and to marry each other) whose union is legally recognised and has been concluded in terms of the Marriage Act 25 of 1961.” One of the legal requirements, as per the definition, is that the parties must have the necessary and full legal capacity to enter into the juristic act of marriage. Since Anne is 17 years old , South African law still regards her as a minor, which means that until she reaches the age of 18 years she would be required to obtain the necessary consent from either her parents or legal guardian.
In full the various legal requirements for the conclusion of a valid marriage are as follows:
• Legal capacity
• Consensus(agreement)
• Lawfulness
• Following or abiding by the prescribed formalities …show more content…

After the man’s death she claimed maintenance from the deceased estate in terms of section 2(1) of the Maintenance of Surviving Spouses Act. The claim was rejected by the Executor. The question that arose was whether the definition of “spouse” contained in the Maintenance of Surviving Spouses Act 27 of 1990 is unconstitutional because it unfairly discriminates against life partners. The court held that marriage and family are vitally important social institutions in our society and marriage is an ‘internationally recognised social institution’. It was therefore justifiable discrimi9nation to permit only married person to receive certain benefits which unmarried persons do not receive. Whereas with marriage a reciprocal duty of support arose by operation of law (ex lege) as soon as the marriage was concluded this was not the case with a life partnership. As such the discrimination was fair and just.

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