72 THE LAW OF PERSONS men, and twenty for young women, imless they produce to the magistrate or minister of rehgion the consent of their parents or the survivor of them (if they have any) ; and by Art. 13 declares ' null and void and of no effect marriages not contracted and celebrated ' as required by the Ordinance, and adds an express reservation of the provisions of the Perpetual Edict relating to the marriage of minors and the penalties therein contained.^ With The com- regard to the interpretation of these two enactments and fi'^t f their combined effect very divergent views have been of these entertained. As regards minors who have parents or me^ta : parent yet living the law seems plain. Such young per- (a) As re- SOUS can neither engage themselves ^ nor contract a vahd fentof °° marriage,^ without the consent of parents or parent.* parents ; If both parents are Hving the consent of both is required, but in case of difference of opinion between them the will of the father, as the head of the family, prevails over that of the mother.* If the father is dead the mother's consent is necessary, and sufificient,^ even though she has contracted a second marriage. Consent may be express or tacit, the latter when a parent knows of the intended marriage and does not forbid it. Such a case might arise if, through fraud or mistake, the pubhcation of banns had taken place without previous proof of parental consent as required by the Pohtical Ordinance, and the parents nevertheless acquiesced in the banns when they came to know of them.^ Indeed, in the absence of fraud on the part of one or both of the spouses, pubhcation of banns is deemed to be notice to the parents,* and a marriage thereafter concluded is valid, even though, through care- lessness on the part of the marriage-officer or other person
1 G. P. B. 334.
" Voet, 23. 1. 20 ; V. d. L. 1. 3. 2. ^ Van Leeuwen, 1. 14. 6 ; Willenburg v. Willenburg (2) (1908) 25 S. C. at p. 910 ; 3 Buch. A. C. 409.
- Grandparents are not included. V. d. K. Th. 77.
° Voet, 23. 2. 13. 'Ibid. ' Voet, 23. 2. 14. » Voet, 23. 2. 18. » Voet, loc. cit. {ad fin.); Johnson v. Mclntyre (1893) 10 S. C. 318. But there is no presumption of notice in case of marriage by special
licence under Cape Act No. 9 of 1882.