A long battle to expunge a fraudulent marriage from the records of the Department of Home Affairs

The number of fraudulent marriages reported to the Department has, in fact, increased to such an extent that an instant SMS-notification service has been put in place for individuals to check their marital status as well as the date on which they were married.

Marriage alone carries with it considerable challenges but these are exacerbated for some South Africans ready to formalise their relationships when they find out that their marriage cannot be processed as one of the partners is already recorded by the Department as being married to someone else. This is precisely the precarious position in which our client found herself in 2012 when she and her partner sought to formalise their relationship of two years.

Our client met her partner in 2010 and soon gave birth to their first child. The couple decided to get married in 2012 and it was only at this point that it came to our client’s attention that according to the Department’s marriage register she was already ‘married’ to someone else whom she had never met (the unknown spouse). As a result of this erroneous entry in the marriage register our client has been unable to marry her partner and father of her child and potentially faced various proprietary consequences as a result of what appears to have been an act of fraud. Although our client immediately informed the Department of the fraudulent marriage, her attempts to remedy the situation herself through consultations with the Department failed and consequently she sought our assistance in mid-2013.

Our numerous efforts to engage with the Department proved no more successful. Although the Department insisted that it had conducted an internal investigation that confirmed that a marriage had been entered into, for reasons it failed to ever explain, it refused to furnish us with either the investigative report or a copy of the relevant entry into the marriage register in question. As result of the Department’s lack of co-operation we were forced to resort to litigation to compel it to rectify
its records.

Without any other means of obtaining details of the unknown spouse, we were required to litigate in two stages. First we had to obtain leave from the Court to give due notice of the application by means of substituted service. Having obtained a directive from the Court in this regard and having effected service on the unknown spouse by attaching a notice on the South Gauteng High Court’s notice board and in a newspaper, we filed our substantive application to have the record expunged in 2015.

Needless to say no opposition was noted by the unknown spouse. Although it filed a notice of intention to oppose the application, the Department failed to file an answering affidavit or ever tender any explanation for its conduct in resisting the amicable resolution of the matter. Ultimately we recently obtained an order at the North Gauteng High Court on 8 March 2016 unopposed. Hughes J ordered that the Department expunge the erroneous marriage from its records and allowed the Department fourteen days in which to comply. This period expires on 31 March 2015 and the State Attorney has been informed of the Order. The fact that we were forced to take the Department to court to assist our client is unfortunate. We await confirmation that the record has been expunged.