20 January 2022 12:00 by Merilyn Kader
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In Botha v Steyn  4 All SA 87 (KZD), legal requirements of wedding ceremonies, if no marriage was contracted between the plaintiff and the defendant, there could be no talk of a decree of divorce.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Family law and persons -Existence of marriage where alleged wedding ceremony did not fulfil legal requirements: The plaintiff in Botha v Steyn  4 All SA 87 (KZD) instituted action seeking a decree of divorce against the defendant, as well as payments of R100 000 per month and half of the nett value of the defendant’s estate.
Having met and become engaged in 2005, the parties resided together, travelling between London and South Africa (SA). In 2007, they hosted a ceremony which was meant to be a wedding ceremony. Guests were flown from SA to London at the defendant’s expense and the parties exchanged rings at the ceremony. However, the wedding was not registered as there was insufficient time to obtain a marriage licence. On their return to SA, the parties cohabited as husband and wife until December 2007 when the marriage began floundering. By 2009 the relationship had ended permanently, and in 2014 the plaintiff started the litigation in this matter by issuing summons against the defendant.
The evidence of an English solicitor, consulted by the defendant on discovering the problem regarding obtaining of a marriage licence, testified that he had advised the defendant that the ceremony could proceed as a ‘blessing ceremony’. He also stated that he had been requested by the parties after the ceremony, to draw up an agreement regulating their cohabitation as they were not married. The plaintiff was said to have been aware of the legal status of the relationship at that point. The defendant also called an expert in English law as a witness. Her testimony was that the absence of a marriage licence meant that there was no marriage. The court’s only task was to determine whether there had been a valid marriage. It found the plaintiff to be a poor witness who failed to prove that she had been married to the defendant.
The court was satisfied that there was never a marriage contracted between the plaintiff and the defendant and, therefore, there could be no talk of a decree of divorce. The plaintiff was always aware that there never was a marriage existing between her and the defendant as the prerequisites for a marriage in English law had not been met. She knew that the ceremony had no legal effect and that they would need to undertake another ceremony in terms of the marriage laws of SA if they were to be validly married.
It was held by Hadebe J that the defendant had made an overwhelming case for the dismissal of the plaintiff’s action with costs, which costs should be granted at a punitive scale.
Merilyn Rowena Kader
Legal Editor at LexisNexis