An engagement is the only valid basis for a marriage. It is two party’s willingness to enter marriage.
What are some of the circumstances where the marriage can be considered void?
These are known as material mistakes:
- The mistaken identity of a person – this usually does not happen as one sees their soon to be spouse at the wedding, but this can happen in the case of twins or doppelgangers.
- A mistake as to the act itself: this may be where the person does not know the ceremony is meant to be that of a marriage.
Mistakes pertaining to personal characteristics do not result in a lack of consensus e.g., finances, relatives, names, or religion.
What may make a marriage voidable (meaning that it is legal but could be annulled)
This is usually misrepresentation – where one party is deceived by another party. The deceived party must prove that he/she would not have entered the marriage had they have been aware of certain things.
However, what is considered as misrepresentation?
- Intentional concealment of sterility or stuprum: Being sterile is where one party cannot have children. This must be present at the time when the marriage was concluded, the parties must have considered sexual intercourse after marriage, it must be incurable, and the applicant must not have been aware of it at the time of the marriage. Stuprum is where the woman is pregnant with another mans child. The husband must be unaware of the pregnancy at the wedding, and he must not have condoned the action;
- The existence of an illegitimate child;
- Sexual promiscuity;
- Homosexual behaviour; and
- Serious disease.