Background of the M.W v C.W Case: A Marriage Validity Dispute
The case of M.W v C.W (2462/2019) [2025] ZANCHC 34 (11 April 2025) centers around a complex matrimonial dispute that reached the Northern Cape Division of the High Court in Kimberley. The matter began when the plaintiff, M.W., instituted divorce proceedings against the defendant, C.W., on 6 November 2019. According to the plaintiff’s particulars of claim, the parties were married on 12 October 2013 out of community of property subject to the accrual system, with their marriage still subsisting at the time of filing. The plaintiff sought maintenance of R10,000 per month for a period of 5 years from the date of divorce, as well as coverage of medical, dental, and ophthalmic costs, including medical aid for the corresponding period.
However, the defendant responded with a special plea, contending that their marriage was null and void ab initio (from the beginning) because the plaintiff was already married to a third party, one K.E.D.V., at the time she purportedly married the defendant. To support this contention, the defendant attached a certified copy of a marriage certificate showing the plaintiff’s alleged prior marriage to K.E.D.V. on 24 January 2004.
In her replication, the plaintiff flatly denied the defendant’s assertion, maintaining that the purported marriage between her and K.E.D.V. was itself null and void ab initio due to several vitiating elements. Most significantly, she claimed that the person who performed the purported marriage between her and K.E.D.V. was not a marriage officer in terms of the Marriage Act 25 of 1961, making the purported marriage null and void for non-compliance with the Act’s requirements.
The core dispute thus became whether the marriage entered into between the parties on 12 October 2013 was null and void ab initio because the plaintiff was allegedly already married to a third party. The case highlights the critical importance of proper marriage registration and the legal consequences that follow when formal requirements under South African matrimonial law are not met.
After initial hearings, Judge Nxumalo ordered that this specific issue—the validity of the 2013 marriage—be decided separately before any other aspects of the divorce proceedings. The parties subsequently agreed to a stated case for adjudication, setting out the common cause facts and the legal question in dispute. Among the agreed facts was that K.E.D.V. had passed away on 19 April 2019, that the marriage between the plaintiff and K.E.D.V. was not registered in the records of the Department of Home Affairs, and that both K.E.D.V. and the person who solemnized the marriage had since passed away, making it impossible to conduct an inquiry in terms of Section 6 of the Marriage Act.
The stated case was heard on 2 December 2021, with judgment reserved. On 19 January 2022, Judge Nxumalo declared the purported marriage between the plaintiff and K.E.D.V. null and void ab initio, affirmed that the marriage between the plaintiff and defendant still subsisted, and ordered the defendant to pay the plaintiff’s costs in respect of the stated case. The remaining disputes between the parties were postponed sine die.
Legal Question: Can a Prior Unregistered Marriage Invalidate a Subsequent Marriage?
At the heart of the M.W v C.W case lay a fundamental legal question: can a marriage that was never properly registered with the Department of Home Affairs nevertheless invalidate a subsequent marriage? The defendant argued emphatically that it could, relying on the common law presumption of marriage that arises when a man and woman live together as husband and wife. The defendant contended that where such cohabitation is proved, courts should presume a valid marriage exists unless clearly proven otherwise.
The defendant’s position was bolstered by reference to several legal principles. First, that a marriage certificate serves as prima facie evidence of the particulars set forth in it, as established in Gada v Gada (24141/2000) [2006] ZAGPHC 211. Second, that the words “prima facie evidence” cannot be minimised or brushed aside, as held in R v Chizah 1960 (1) SA 435 AD. Third, that there exists a common law presumption regarding the validity of a marriage flowing from evidence of the ceremony and subsequent cohabitation, as recognized in Ex parte L 1947 (3) SA 50 (C).
The defendant further argued that the Marriage Act and its regulations contain no limitations and do not explicitly state that using incorrect forms to register or confirm a marriage renders it void or invalid. Regulation 5C of the Act makes provision for supplementing and rectifying particulars in the marriage register, suggesting that administrative errors can be corrected without invalidating the marriage itself.
Additionally, the defendant highlighted that the plaintiff had allegedly amended her details at Sanlam and attended “a Yoga Court” under the surname “D.V.” – actions consistent with someone who considered herself married. The defendant also emphasised that the plaintiff had never produced a court order showing that the marriage to K.E.D.V. had been dissolved by divorce.
On the other hand, the plaintiff contended that the purported marriage failed to comply with the formalities set out in the Marriage Act. She argued that the marriage officer who solemnized the marriage should have completed a marriage register in accordance with the marriage regulations published in Government Gazette R883 on 21 May 1993, which he failed to do. Regulation 5A explicitly stipulates that a marriage register should contain substantially the information prescribed in form B1-30.
The plaintiff relied on several authorities to support her position, including Francescutti v Francescutti: In re Francescutti; Ex parte Francescutti 2005 (2) SA 442 (W), Singh v Ramparsad & Others 2007 (3) SA 445 (D), Minister of Home Affairs and Another v Fourie and Others 2006 (1) SA 524 (CC), and Ex Parte Marais and Another 1942 CPD 242. According to the plaintiff, no court order is required to declare a void marriage null and void ab initio, as it remains so without any declaratory order to that effect.
This legal question required Judge Nxumalo to carefully weigh two competing principles: the presumption of marriage validity arising from cohabitation against the requirements for a legally valid marriage under South African law, particularly the formal registration requirements.
The Court’s Assessment of Marriage Registration Requirements in South Africa
In addressing the complex matrimonial dispute between M.W. and C.W., Judge Nxumalo undertook a comprehensive examination of marriage registration requirements under South African law. The court began by acknowledging the established legal principle that while registration of marriages under the Marriage Act 25 of 1961 is required in the public interest and for purposes of proof, registration per se is not essential to the validity of marriages. Similarly, the use of incorrect forms to register or confirm a marriage, or even the absence of a marriage certificate, cannot automatically render a marriage void or invalid, as the existence of the marriage can still be proved through other evidence.
However, Judge Nxumalo emphasised that the presumption of marriage validity is rebuttable. When evidence is adduced showing that a marriage ceremony was performed, the validity of that marriage may be presumed, but the onus falls on the person challenging the validity to show that it is invalid. In this case, the plaintiff carried the burden of disproving the validity of her alleged marriage to K.E.D.V. on a balance of probabilities.
The court carefully analyzed Section 29A of the Marriage Act, which stipulates that the marriage officer solemnizing any marriage, the parties thereto, and two competent witnesses shall sign the marriage register immediately after such marriage has been solemnized. Furthermore, the marriage officer must “forthwith transmit the marriage register and records concerned” to a regional or district representative designated under Section 21(1) of the Identification Act 72 of 1986.
Judge Nxumalo also considered Section 8(e) of the Identification Act 68 of 1997, which requires that citizens’ and lawful permanent residents’ particulars of marriage contained in the relevant marriage register or other documents relating to the contracting of marriage be included in the population register. Section 13(1) of the Identification Act further requires the Director-General to issue a marriage certificate in the prescribed form after the relevant particulars are included in the register.
The court noted that a marriage certificate issued under Section 13(1) constitutes prima facie evidence of the particulars set forth therein, as established in Gabavana and Another v Mbete and Others [2000] 3 All SA 561 (Tk). In this case, the only prima facie evidence before the court was the marriage certificate H0996493, issued to M.W. and C.W. on 12 October 2013, confirming their marriage to each other on that date.
Crucially, Judge Nxumalo rejected the defendant’s characterization of non-registration as a mere “administrative action” that could be easily rectified. According to Regulation 5C, where a marriage has been solemnized but the marriage register has not been completed, the Director-General may direct that the prescribed registers be completed, but only after submission of proof and necessary inquiry. The fact that no such consideration of proof or inquiry had been conducted by the Director-General regarding the plaintiff’s alleged marriage to K.E.D.V. was significant to the court’s assessment.
The judgment referenced the Constitutional Court’s position in the Fourie case, which emphasised that marriages must not only be undertaken publicly and formally but must also be registered once concluded. This is because marriages are sui generis juristic acts that confer certain rights, privileges, duties, and status of a public character. As noted in Springs Town Council v MacDonald; Springs Town Council v Badenhorst 1968 (2) SA 114 (T), where rights, privileges, and immunities are conferred subject to compliance with prescribed formalities, full compliance with those formalities is considered peremptory.
The peremptory language of Sections 29A, 29(3), 30(3), and Regulation 5C of the Marriage Act indicated to the court that a marriage will be null and void ab initio for failure to comply with the prescribed formalities. Judge Nxumalo determined that the “actual intensity of the operational effect” of Section 29A renders a marriage that does not comply with the prescribed conditions null and void from the beginning.
Judge Nxumalo’s Ruling on the Validity of the Marriages
After careful consideration of the evidence and legal arguments presented, Judge Nxumalo delivered a decisive ruling on the validity of the marriages in question. The court determined that the purported marriage between the plaintiff (M.W.) and K.E.D.V. on 24 January 2004 was null and void ab initio, while simultaneously affirming that the marriage between the plaintiff and the defendant (C.W.) on 12 October 2013 remained legally valid and subsisting.
The judge’s ruling was grounded in the principles established in Ex parte Oxton 1948 (1) SA 1011 (C), where it was held that when a marriage is void, no marriage exists as the requirements met are insufficient to constitute a valid marriage. Such a “marriage” has no effect on the status of the parties to it, who retain the status of unmarried persons, as further established in cases like Wells v Dean-Willcocks 1924 CPD 89, Docrat v Bhayat 1932 TPD 125, and Ex parte Strachan 1946 NPD 592.
Judge Nxumalo emphasised that the nullity of a void marriage is absolute. It may be relied upon at any time by either of the parties, even after the death of the other, or by any interested third person, even after the death of both parties. Although no declaration of nullity by a court is required—the marriage being null and void from the beginning even without such declaration—a declaratory order is usually applied for in the interest of legal certainty.
The court quoted Searle AJ in the Oxton case, who stated: “The decree is merely declaratory of and does not alter the existing status of the parties. The object of the decree, however, is to place on record by means of a judgment in rem the fact that the marriage entered into by the parties was void ab initio and gave rise to no legal consequences.”
Furthermore, the judgment emphasised that ratification of a void marriage is, in principle, impossible, and the lapse of time makes no difference in this regard, as established in Wells v Dean-Willcocks. No discretionary powers are vested in the courts in terms of which they can declare a void marriage to be valid, as held in Ex parte L (also known as A) 1947 (3) SA 50 (C) and Ex parte Soobiah: In re Estate Pillay 1948 (1) SA 873 (N).
The court’s order had significant practical implications for the parties. Having declared the purported marriage between the plaintiff and K.E.D.V. null and void ab initio and the marriage between the plaintiff and defendant still subsisting, the court ordered the defendant to pay the plaintiff’s costs in respect of the stated case. The remaining disputes between the parties, presumably relating to the divorce proceedings initiated by the plaintiff, were postponed sine die.
On 1 August 2022, approximately six months after the ruling on the validity of the marriages, the remainder of the disputes between the parties was set down for hearing. Judge Nxumalo granted a decree of divorce incorporating a Deed of Settlement signed by both parties on the same day. Notably, the Deed of Settlement appointed an independent auditor to determine the accrual in the parties’ respective estates, with the provision that the final award of the auditor could be made an order of court.
The auditor made his final award on 1 March 2023, and on 4 April 2023, the plaintiff applied for the award to be made an order of court. After several postponements and despite the defendant’s apparent attempts to delay proceedings through various procedural maneuvers, the application was ultimately granted on 3 November 2023 by Stanton J, who ordered the defendant to pay the costs of the application on an opposed basis.
Implications of the Judgment for South African Matrimonial Law
The judgment in M.W v C.W (2462/2019) [2025] ZANCHC 34 carries significant implications for South African matrimonial law, particularly regarding the formal requirements for valid marriages and the consequences of non-compliance. Judge Nxumalo’s ruling reinforces several key legal principles while providing clarity on contested aspects of marriage registration.
Foremost among these implications is the court’s affirmation that while registration of marriages is not essential to their validity, compliance with the formal requirements prescribed by the Marriage Act 25 of 1961 remains crucial. The judgment clarifies that non-registration is not merely an administrative oversight that can be easily rectified but may be indicative of a fundamental failure to comply with legally prescribed formalities.
The ruling strengthens the position that the provisions of Section 29A of the Marriage Act have a definitive operational effect, rendering marriages that do not comply with the prescribed conditions null and void from inception. This interpretation emphasizes the peremptory nature of the formal requirements for valid marriages in South African law, countering any misconception that such requirements are merely directory.
The case also highlights the interaction between different pieces of legislation governing marriages in South Africa. By examining the interplay between the Marriage Act and the Identification Act 68 of 1997, the judgment demonstrates how these statutes work together to establish and maintain the legal framework for marriage registration. This holistic approach to statutory interpretation provides valuable guidance for legal practitioners navigating the complexities of matrimonial law.
Another significant implication relates to the evidentiary value of marriage certificates. The judgment confirms that properly issued marriage certificates constitute prima facie evidence of the particulars contained therein, but it also illustrates that such evidence can be successfully rebutted through proof of non-compliance with statutory requirements. This balances the presumption of marriage validity with the necessity for adherence to legal formalities.
For couples in South Africa, the judgment serves as a cautionary tale about the importance of ensuring proper solemnization and registration of marriages. It underscores that cohabitation and the assumption of marital status—even if maintained over an extended period—cannot cure fundamental defects in the marriage process. This reinforces the distinction between legal marriage and other forms of domestic partnership in South African law.
The case also demonstrates the continued relevance of common law principles in modern matrimonial disputes. Judge Nxumalo’s reference to established precedents like the Oxton, Wells, and Ex parte L cases shows how these principles continue to guide judicial decision-making alongside statutory provisions. This judicial approach ensures continuity and consistency in the development of South African matrimonial law.
For legal practitioners, the judgment provides a practical illustration of how to structure arguments in cases involving disputed marriage validity. The court’s methodical analysis of both factual evidence and legal principles offers a useful template for similar disputes. The emphasis on the burden of proof—placing the onus on the party challenging marriage validity to prove invalidity on a balance of probabilities—provides clear guidance on evidentiary requirements in such cases.
Finally, the judgment serves as a reminder of the courts’ limited discretionary powers in relation to void marriages. By affirming that courts cannot declare void marriages valid and that ratification of such marriages is impossible regardless of the passage of time, Judge Nxumalo reinforces the strict approach to marriage validity in South African law. This strict approach serves the important public policy goal of maintaining certainty in an area of law with far-reaching social and economic implications.
Further Cases
Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) – This case was cited to emphasize that a party seeking condonation must make out a case entitling it to the court’s indulgence by showing sufficient cause and providing a full explanation for non-compliance with rules or court directions.
Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) – The court referenced this case to establish that litigants are ordinarily entitled to reasons for judicial decisions following a hearing, and that written reasons are indispensable when a judgment is sought to be appealed.
Mimbiri v Road Accident Fund (Ex Tempore Judgment) [2022] JOL 60018 (GP) – This judgment was cited regarding the principle that “good cause” is required for any extension or abridging of time and the condonation of non-compliance with the rules, giving courts a wide discretion which must be exercised with regard to the merits of the matter as a whole.
Gumede v Road Accident Fund 2007 (6) SA 304 (C) – The court referenced this case to support the principle that “good cause” gives a court wide discretion in considering condonation applications.
Ex parte Oppel and Another in re: appointment of curator ad litem and curator bonis [2002] 2 All SA 8 (C) – This case reinforced that “good cause” is a requirement for any extension or abridging of time and the condonation of non-compliance with the rules by a court.
Seven Eleven Corporation SA (Pty) Limited v Georgiou and Another [2002] 4 All SA 612 (SE) – This case was cited to establish that in stated cases, the court may draw inferences from the agreed facts and attached documents and may base its decision on the questions of law in dispute on the facts and inferences.
Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) – The court referenced this Constitutional Court case regarding the importance of rules that regulate court proceedings, noting that while these rules may limit access to courts, such limitation must be justifiable under Section 36 of the Constitution.
Questions and Answers
What was the core legal dispute in the M.W v C.W case? The core legal dispute centered on whether the marriage between M.W. and C.W. on 12 October 2013 was null and void ab initio because M.W. was allegedly already married to a third party, K.E.D.V., at the time. The defendant (C.W.) contended that the plaintiff’s purported prior marriage invalidated their subsequent marriage, while the plaintiff argued that her purported marriage to K.E.D.V. was itself invalid due to non-compliance with statutory requirements.
How did the court address the burden of proof in this case? The court held that while the validity of a marriage may be presumed once evidence is adduced showing that the marriage ceremony was performed, such a presumption is rebuttable. The onus falls on the person who challenges the validity of the marriage to show that it is invalid. This rebuttable presumption creates a legal burden, requiring the validity of the marriage to be disproved on a balance of probabilities. In this case, the plaintiff bore the burden of proving that her purported marriage to K.E.D.V. was invalid.
What is the legal effect of non-registration of a marriage in South Africa? The court acknowledged that while registration of marriages under the Marriage Act is required in the public interest and for purposes of proof, registration per se is not essential to the validity of marriages. However, the judgment clarified that non-registration is not merely an administrative error that can be easily rectified. When considered alongside other factors indicating non-compliance with statutory requirements, non-registration may support a finding that a purported marriage is void ab initio.
What role does a marriage certificate play as evidence in South African law? According to the judgment, a marriage certificate issued in terms of Section 13(1) of the Identification Act constitutes prima facie evidence of the particulars set forth therein and the existence of the marriage. This means that a judicial officer must accept the particulars as correct until convinced otherwise by evidence that refutes or casts doubt upon the contents of the certificate. However, this prima facie evidence can be rebutted through proof of non-compliance with statutory requirements.
How did the court interpret Section 29A of the Marriage Act? The court interpreted Section 29A of the Marriage Act as having peremptory force, meaning that compliance with its provisions is mandatory rather than directory. Judge Nxumalo held that “the actual intensity of the operational effect of the provisions of Section 29A of the Marriage Act, properly discerned, renders a marriage that does not comply with the prescribed conditions null and void ab initio.” This interpretation emphasises the crucial importance of adhering to the formal requirements prescribed by the Act.
What is the significance of Regulation 5C of the Marriage Act in this case? Regulation 5C allows the Director-General to direct that a marriage register be completed for a marriage allegedly solemnised but not properly registered, but only after consideration of such proof and inquiry as deemed necessary. The court rejected the defendant’s characterisation of non-registration as a mere “administrative action” that could be easily rectified, emphasising that the Director-General’s intervention requires submission of proof and proper inquiry, neither of which had occurred in relation to the purported marriage between the plaintiff and K.E.D.V.
Can a void marriage be ratified or validated in South African law? No. The court emphasised that ratification of a void marriage is, in principle, impossible, and the lapse of time makes no difference in this regard. This principle was established in cases like Wells v Dean-Willcocks. The judgment also confirmed that courts have no discretionary powers to declare a void marriage valid, as established in Ex parte L and Ex parte Soobiah.
What is the legal status of parties to a void marriage? According to the judgment, when a marriage is void, no marriage exists since the requirements met are insufficient to constitute a valid marriage. Such a “marriage” has no effect on the status of the parties to it, who retain the status of unmarried persons. This means that individuals in a void marriage are legally considered single, as if no marriage had ever taken place.
Is a court declaration necessary to establish that a marriage is void? No. The court clarified that the nullity of a void marriage is absolute, and it may be relied upon at any time by either of the parties or by any interested third person. Although no declaration of nullity by a court is required—the marriage being null and void ab initio even without such declaration—a declaratory order is usually sought in the interest of legal certainty. As stated in Ex parte Oxton, such a decree is merely declaratory and does not alter the existing status of the parties.
How does the common law presumption of marriage operate in South African law? South African law recognizes a common law presumption that where a man and woman are proved to have lived together as husband and wife, they are presumed to be living together as a consequence of a valid marriage, unless the contrary is clearly proved. This presumption creates a rebuttable inference of marriage validity based on cohabitation and public perception, but as this case demonstrates, it can be overcome by evidence of non-compliance with statutory requirements for a valid marriage.
What is the relationship between the Marriage Act and the Identification Act in marriage registration? The judgment illustrates how these statutes work together to establish the legal framework for marriage registration. The Marriage Act prescribes the formal requirements for valid marriages, including the obligation of marriage officers to transmit marriage registers to designated representatives. The Identification Act then requires the Director-General to include particulars of marriages in the population register and issue marriage certificates that serve as prima facie evidence of the particulars set forth therein.
Can a person be married to more than one person simultaneously in South Africa? No, except in limited circumstances recognized by law. The judgment cited Section 8(1) of the Civil Union Act 17 of 2006, which stipulates that a person may only be a spouse or partner in one marriage or civil partnership at any given time. This principle of monogamy in civil marriages remains fundamental to South African matrimonial law, although the Recognition of Customary Marriages Act does permit polygynous customary marriages under certain conditions.
What are the consequences of a court declaring a marriage void ab initio? When a court declares a marriage void ab initio, it is acknowledging that the marriage never legally existed. Consequently, none of the normal legal consequences of marriage would apply. However, the court may still need to address practical matters that arose during the purported marriage, such as the division of property. In this case, after declaring the plaintiff’s purported first marriage void, the court was able to proceed with the divorce proceedings between the plaintiff and defendant.
What is the significance of a “stated case” procedure in this matter? The stated case procedure, governed by Rule 33 of the Uniform Rules of Court, allowed the parties to agree on a written statement of facts for adjudication, including agreed facts, questions of law in dispute, and each party’s contentions. This procedure enabled the court to decide the preliminary issue of marriage validity before proceeding with the broader divorce dispute. In complex matrimonial matters, this approach can save time and resources by resolving threshold legal questions before addressing contested factual issues.
How did the Constitutional Court’s ruling in the Fourie case influence this judgment? The judgment referenced the Constitutional Court’s position in Minister of Home Affairs v Fourie, which emphasised that marriages must not only be undertaken publicly and formally but must also be registered once concluded. This is because marriages are sui generis juristic acts that confer certain rights, privileges, duties, and status of a public character. By citing this authority, Judge Nxumalo reinforced the importance of marriage registration not merely as an administrative formality but as a reflection of the public character and social significance of marriage in South African society.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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