The marriage of a missing person can be dissolved by the High Court if it grants an order presuming death. While the court has a discretion in the matter, it cannot grant the order on its own initiative. The order may be granted only on application by the surviving spouse/partner, either when the order for presumption of death is requested or at any time thereafter – that is at a later date by means of a separate application to the High Court.
Divorce is only an option for couples who were lawfully married and the divorce procedure is outlined elsewhere. The divorce process can be simple and a divorce settlement agreement is filed in the divorce court.
Cohabitation is quite different. Cohabitation is a stable monogamous relationship where a couple who do no wish to, or are not allowed to, get married, live together as spouses. This definition includes people of the same sex living together in a stable, exclusive relationship. Sometimes this definition is limited to couples of the opposite sex living together. Cohabitation is also referred to as living together, shacking-up, de facto marriage, quasi-marriage, common-law marriage, domestic partnership or private marriage.
The only distinguishing feature of living together is the fact that the couple is not legally married to each other. The term does not include non-sexual relationships.
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Flowing from the fact that there are various legal requirements for a valid marriage, the absence of any one or more of these requirements will affect the validity of the marriage. The effect can be to render the marriage voidable or void. In the former case a marriage comes into existence but the marriage can, as a result of the non-compliance with a requirement, be set aside by the court. In the latter case there is in fact no marriage since the facts are insufficient to constitute a valid marriage.
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Many people including some attorneys don’t understand the position surrounding the engagement. The engagement is merely an agreement between a man and a woman who are both free to marry each other that they will marry each other at some time in the future.
This there must be a proper agreement, capacity to enter into an agreement and where assistance is required in law, that the necessary consent has been given and that the parties are competent to marry each other and finally that any suspensive condition attached to the agreement has been fulfilled.
It is not necessary for the parties to fix a time for the marriage.
An engagement is binding on both parties.
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