key to the study guide - Name

Undue influence
It is submitted in your textbook on page 30 that, although there is no
authority on the effect of undue influence on consensus to marry, undue
influence should affect the validity of the marriage.
ACTIVITY
Summarise in one page (+430 words) the various factors which can have
an effect on consensus, as well as the effect of each factor on the validity of
the marriage.
FEEDBACK
One of the legal requirements for the conclusion of a valid marriage is
consensus. Our law requires that at the moment of entering into the
marriage, both parties thereto must have the will to marry each other.
Various factors may have an effect on consensus. These factors are mistake,
misrepresentation, duress and undue influence.
In respect of mistake, only a material mistake excludes consensus.
Mistake concerning the identity of the other party (error in personam) and
mistake concerning the nature of the juristic act (error in negotio) are the
only forms of material mistake in respect of marriage. Error in negotio is the
only form of mistake or misunderstanding which occurs in practice. It is,
however, not clear whether a material mistake renders the marriage void or
voidable. According to some authors the marriage is not void but voidable.
According to CronjeÂand Heaton (the authors of your textbook) the
marriage should be void because consensus is absent. However, they point
out that if regard is had to the interests of society and third parties, the
marriage ought not to be void, but voidable at the request of the party
who was mistaken.
Simulated marriages or so-called ``marriages of convenience'' must be
distinguished from cases of material mistake. The court in Martens v
Martens held that a simulated marriage is a valid marriage since the man
andwomanactuallyhadtheintentionofenteringintoavalidmarriage.
A mistake is not material where one of the parties is mistaken about
certain facts concerning the marriage itself or the personal attributes of the
other party, unless such misunderstanding was caused by a misrepresentation
on the part of the other party. A non-material mistake is irrelevant to
the marriage and is therefore not a ground for its dissolution.
In respect of misrepresentation, only a serious misrepresentation affects
the validity of a marriage. An example of a serious misrepresentation is
where a woman is already pregnant by another man at the time of entering
into the marriage and fraudulently conceals this. In this case the husband
can have the marriage set aside.
Duress (ie force) also has an effect on consensus. Where one of the spouses
has been forced, through duress, to consent to the marriage, the marriage
is voidable. An example of such a situation is Smith v Smith where the bride
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