One cannot simply regard a marriage as having never validly taken place. There are some instances where grounds do in fact exist where a marriage is invalid and annulled. Otherwise, the parties must get divorced.
Someone asked me: Please could you advise me regarding the annulment of a marriage? I have heard that it can be done up to three months after the event.
Annulment is a legal procedure for declaring a marriage null and void. An annulled marriage is considered to be invalid from the beginning almost as if it had never taken place.
There are two categories of marriages which may be set aside by the Court, void marriages(which have no legal validity at all) and voidable marriages, which exist legally until the Court declares the marriage to be invalid.
Since a void marriage is not legal from the start, it is not necessary to go to Court for a decree of nullity. You can simply get on with your lives. Sometimes, however, it is desirable to obtain a declaratory order that the marriage is void in the interests of certainty and proof, in order to assist you in separating your affairs. Such a declaratory order simply states that the marriage is void and that it was never legal.
The following are void marriages:
- An informal marriage concluded without compliance with the legal formalities laid down in the Marriage Act;
- A marriage officiated by someone who had not been properly appointed as a marriage officer;
- A marriage celebrated in the absence of witnesses;
- A marriage between persons who fall within the prohibited degrees of relationship (e.g., father and daughter; mother and son; grandfather and granddaughter; grandmother and grandson; brother and sister (full or half); uncle and niece related by blood to a common ancestor; aunt and nephew related by blood to a common ancestor. Note: marriage between cousins is not prohibited);
- A marriage where one of the parties is already married to a third person;
- A marriage by a male under 18 or a female under 15 without the consent of the Minister of Home Affairs;
- A marriage by an insane person;
- A marriage made under one of the following (“operative”) mistakes: a mistake regarding the nature of the transaction (e.g., one or both of the parties thinking that it was an engagement ceremony as opposed to a marriage); a mistake regarding the identity of one / both of the parties to the marriage.
The following are voidable marriages, i.e., marriages which are legally valid until they are annulled:
- An application can be made to Court by a minor to annul a marriage entered into without the prior consent of his/her parents or his/her guardian; by the parents/guardian within six weeks of the marriage, or by the minor within three months of his/her becoming an adult (18 years old).
- A marriage concluded under duress (threats/force/intimidation, etc) by the party who acted under duress in agreeing to the marriage.
- A marriage voidable by reason of fraud (a misrepresentation which induced the marriage) by the party who was misled by the fraud.
- A marriage entered into where the woman is pregnant by a third party at the time of the marriage without her husband’s knowledge (in this instance the law appears to be that only the husband can set the marriage aside, but it may be, in the light of progress towards gender equality, that the wife could also apply to set the marriage aside if she was unaware of the pregnancy by the third party at the time of the marriage).
- An application can be made by either of the parties where one of the parties is impotent at the time of the marriage.
The party who is entitled to bring the application for an annulment is not obliged to do so. He or she can choose whether to remain in the marriage and ratify it.
Once the decision is made to annul the marriage, however, it is advisable immediately to cease cohabitation and to apply for the annulment as soon as possible, as continuing cohabitation and an unreasonable delay in bringing the application could be treated as evidence that the party decided to stay, adopt and confirm the marriage, in which case the annulment will not be granted.
If the marriage does not fall within these legal categories of void or voidable marriages, the only way in which the marriage can be dissolved is by an action for divorce.
Go Here to see when a court may annul your marriage.