Void and Voidable Marriages Explained
| Written by Roy Bregman – admitted attorney with over 51 years’ experience in family law and director at Bregman Moodley Attorneys Inc., Johannesburg. Read Roy’s full biography. |
| Key Takeaways
• An annulment is a court order declaring that a marriage is void (it never legally existed) or voidable (it can be set aside because of a defect present at the time of the wedding). • Annulment is not the same as divorce. A divorce ends a valid marriage that has broken down; an annulment cancels a marriage that was legally flawed from the start. • Common grounds include a marriage by an unauthorised official, an existing marriage, lack of consent, impotence, sterility, duress, fraud, or the wife being pregnant by another man without the husband’s knowledge. • The rights of children are protected. Under the Children’s Act, children of an annulled marriage are treated the same as children whose parents divorce, and no voidable marriage may be annulled until the court has considered the children’s interests. |
If you are asking whether your marriage can simply be cancelled – as though it never happened – you are asking about an annulment. An annulment is a court order that nullifies a marriage or declares that no valid marriage ever existed. It is sometimes called a declaration of invalidity or a declaration of nullity.
A marriage in South Africa can come to an end in one of three ways: through the death of one of the spouses, through divorce, or through annulment. An annulment becomes available when a court declares a marriage to be either void or voidable. Understanding the difference between these two categories is the key to understanding when a marriage can be set aside.
This is the distinction that causes the most confusion, so it is worth being precise.
A divorce is granted because of circumstances that developed during the marriage – most often that the marriage has broken down irretrievably. The marriage was valid; it has simply come to an end.
An annulment is granted because of circumstances that already existed before or at the time of the wedding – a defect that means the marriage was legally flawed from the very beginning.
This timing point is everything. Divorce looks at what went wrong later; annulment looks at what was wrong from day one.
A void marriage is one that was never valid in law. Strictly speaking, because a void marriage never came into existence, there is no need for a formal annulment – the parties can simply walk away. In practice, however, it is far safer to obtain a formal declaration of nullity from the court to avoid future legal complications, particularly around property, inheritance and status.
A court will declare a marriage void in the following circumstances:
No witnesses being present at the ceremony is also a failure of the formal requirements of a valid marriage.
Important: where a marriage is declared void, the effect is retrospective. In law, the parties are treated as never having been married at all.
A voidable marriage is valid and fully effective unless and until a court sets it aside. It can be annulled because of a defect that was present before or at the time of the wedding. The effect of a decree of annulment is that all the consequences of the marriage are extinguished from the date of the marriage – it operates retroactively, so the parties become unmarried, while the children remain legitimate.
Consent is an essential element of any valid marriage. During a civil ceremony, both parties must confirm before the marriage officer that they voluntarily consent to marry each other. Where that consent was absent or materially defective, the marriage may be set aside.
Six months after John and Laura marry, they decide to start a family. John then learns he is sterile and cannot have children. Laura is devastated and tells her attorney she would never have married John had she known. Whether Laura can have the marriage annulled depends on a single question: did John know he was sterile before the wedding? If he knew and said nothing, Laura may have a ground based on misrepresentation. If John genuinely did not know, Laura has no ground to set the marriage aside on this basis. This is exactly the kind of fact-specific question where early legal advice matters.
This is often a parent’s first concern, and the law offers real protection. The outdated language of “illegitimate” or “extra-marital” children has been abolished. The Children’s Act now refers simply to a child born to unmarried parents, and removes the stigma that once attached to children of void or annulled marriages.
Under section 39 of the Children’s Act, the rights of a child conceived or born of a voidable marriage are not affected by the annulment of that marriage. Crucially, no voidable marriage may be annulled until the court has inquired into and considered the safeguarding of the rights and interests of any child of that marriage. A child of an annulled voidable marriage is treated in the same way as a child whose parents’ valid marriage ends in divorce.
A putative marriage is an important exception to the rule that a void marriage has no consequences. It arises where one or both parties were genuinely unaware, at the time of the wedding, of the defect that makes the marriage void, and believed in good faith that they were lawfully married.
Although such a marriage is still void, the law allows it to carry some of the consequences of a valid marriage:
Moola and Others v Aulsebrook NO and Others 1983 (1) SA 687 (N)
Facts: A husband and wife went through a marriage ceremony in accordance with Islamic law, conducted by a priest who was not a marriage officer. Neither spouse knew that the officiant was not authorised to marry them.
Decision: The court held that the marriage was putative – not simply void – even though the statutory formalities had not been met. The children were therefore regarded as legitimate. On this view, due solemnisation by a marriage officer is not a requirement for a marriage to be recognised as putative.
Solomons v Abrams 1991 (4) SA 437 (W)
Facts: A couple married under Islamic law, both believing the marriage was lawful under Islamic law. They made no attempt to establish what South African law required for a valid marriage, and later asked the court to declare their marriage lawful.
Decision: Because the officiant was not a competent marriage officer, the formalities had not been complied with, and the court held that this was not a putative marriage. This decision takes the opposite view to Moola, requiring due solemnisation before a putative marriage can be recognised.
These two decisions sit in tension with one another, which is why the requirements for a putative marriage remain a genuinely contested area – and why expert advice is essential where one applies.
Van Niekerk v Van Niekerk 1959 (4) SA 658 (GW) held that the mere fact of sterility renders a marriage voidable.
Venter v Venter 1949 (4) SA 123 (W) took a narrower view: only the fraudulent concealment of sterility renders a marriage voidable.
Because these decisions point in different directions, whether sterility alone is enough to annul a marriage – or whether deliberate concealment must also be shown – will turn on the specific facts and how a court chooses to approach them.
In customary law there is a direct link between the transfer of lobolo and the marriage itself. From a customary perspective, a marriage may only be regarded as “complete” once the wife has borne children and the commitment to transfer lobolo (for example, the agreed lobolo cattle) has been fully met. Where either requirement is not satisfied, the marriage may be treated as “incomplete”, and this can, in certain circumstances, lead to its annulment. Customary marriages raise their own distinct considerations, and we recommend specific advice for these matters.
No. A divorce ends a valid marriage that has broken down. An annulment cancels a marriage that was void or voidable because of a defect that existed at the time of the wedding.
Technically no, because a void marriage never legally existed. In practice, obtaining a formal declaration of nullity is strongly advisable to prevent future disputes about property, inheritance and status.
No. The concept of “illegitimacy” has been abolished. Under the Children’s Act, children of an annulled marriage are treated the same as children whose parents divorce, and a court must consider the children’s interests before annulling a voidable marriage.
Possibly. Sterility and impotence can be grounds, but the outcome depends on what your spouse knew at the time of the marriage, whether you knew, and whether you condoned the position. This is a fact-specific question best assessed by an attorney.
It depends on the ground. For a minor’s marriage, for example, strict time limits apply. Because deadlines and requirements vary, you should obtain advice as soon as possible.
Annulment is a powerful but technical remedy. Whether a marriage is void, voidable or putative depends on precise facts – who solemnised it, what each party knew, when they knew it, and whether children are involved. The case law in some areas, such as putative marriages and sterility, remains unsettled, which makes early, accurate advice all the more valuable. If you are unsure whether your marriage can be annulled, the safest course is to speak to an experienced family law attorney before taking any step.
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Wondering whether your marriage can be annulled? Our family law team has been guiding clients through these decisions since 1974 – hands-on, contactable, reasonably priced, and quick to respond. Contact Bregman Moodley Attorneys today for a confidential discussion of your situation. Send us an enquiry and we will follow up with a phone call within 24 working hours. |
This article provides general information and is not legal advice. For advice on your specific circumstances, please consult a qualified attorney.