A marriage is putative if one or both spouses in good faith are ignorant of the fact that their marriage is invalid, but they have a belief that the marriage is valid.
What defines a putative marriage?
For a void marriage to be putative, at least one or both spouses must have been unaware that the marriage is invalid. This then renders the relationship between the parties as putative.
The sincerity of at least one of the spouses is a justification for the existence of a putative marriage in that it attempts to avoid the harsh consequences of total invalidity of the marriage that would otherwise result. This is done by attaching limited legal consequences to a putative marriage that would otherwise not apply in the case of total invalidity.
Legal consequences of a putative marriage
The consequences of a putative marriage may include the following:
- That the children born out of a putative marriage are children born of married parents, this means the children may inherit in the intestate estate of their parents.
- Both parents have full parental rights and responsibilities towards their children.
- The reciprocal duty of support exists between the spouses.
- Where parties intended their marriage to be in or out of community of property, such matrimonial system shall govern their marriage.
Where one party was genuine and there was no antenuptial contract concluded, the marriage will be regarded as marriage in community of property if it is beneficial to the bona fide spouse.
Damages can be claimed from a spouse
When one is involved in a putative marriage, such person has the duty to prove that they were sincere and that he or she believed that the marriage was valid in order for them to get the benefits that would flow from a valid marriage. Where one enters into a marriage in community of property with a person who is already in a civil marriage in community of property, such person has the right to claim damages from his or her spouse.
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