Putative marriages

 

A putative marriage is a marriage that is seemingly valid but lacks legal standing due to a technical defect. Here’s a deeper explanation of putative marriages in South Africa:

 

 

Marriage in Appearance Only:

 

• 📌 A putative marriage occurs when at least one partner believes they are entering into a legal marriage, but an unknown impediment renders the marriage invalid.

 

• 📌 This impediment could be a pre-existing marriage of one partner that wasn’t dissolved, lack of proper formalities, incapacity to marry (due to mental illness or being underage), or certain prohibited relationships (like close blood relatives).

 

 

Good Faith Belief:

 

• ☑️ The key aspect of a putative marriage is the good faith belief of at least one spouse. They must be genuinely unaware of the impediment that makes the marriage invalid.

 

 

Legal Consequences (Limited):

 

• ☑️ Even though the marriage is technically void, the law recognizes some legal consequences for a putative marriage, particularly to protect the good faith spouse and any children born during the marriage.

 

• ☑️ These consequences might include:
  • 📌 Division of Assets: In some cases, the court might order a division of assets acquired during the putative marriage, similar to a divorce. This protects the financially weaker spouse who entered the marriage in good faith.
  • 📌 Maintenance: A spouse who acted in good faith might be entitled to spousal maintenance from the other spouse.
  • 📌 Rights of Children: Children born during a putative marriage are considered legitimate and have the same rights as children born in a valid marriage.

 

 

Important Points:

 

• ✅ The burden of proof lies with the spouse claiming a putative marriage to demonstrate their good faith belief in the marriage’s validity.

 

• ✅ Putative marriages are relatively uncommon because most impediments to marriage can be discovered before the ceremony.

 

• ✅ Annulling a putative marriage is a legal process to formally declare the marriage invalid.

 

 

Benefits of Putative Marriages:

 

• 📌 Protects the rights of the innocent spouse who entered the marriage in good faith.

 

• 📌 Ensures the well-being of children born during the putative marriage.

 

 

Seeking Legal Advice:

 

If you believe you might be in a putative marriage, consulting with a lawyer specializing in family law is crucial. They can advise you on your legal rights and options, such as annulling the marriage or seeking spousal support.