Nullity of Marriages

This section of the course focuses on scenarios when relationships diverge sufficiently from the conventional legal definition of marriage, resulting in the courts determining that no legal marriage exists due to it being either void or voidable.

VOID AND VOIDABLE MARRIAGES

  • An invalid marriage is categorized as either void or voidable.

  • Voidable Marriage:

    • Remains valid until formally annulled by a court order or decree.

    • Examples of circumstances that lead to a voidable marriage include one party's incapacity or a significant misunderstanding regarding the marriage agreement.

  • Void Marriage:

    • Considered void ab initio (invalid from the beginning).

    • Can be regarded as invalid by any party without needing a court decree.

    • Courts can declare a marriage void upon application from either party or through a direct filing for annulment.

Case Law References:

  • De Reneville v De Reneville [1948] 1 All ER 56, CA

  • R v. Algar [1953] 2 All ER 1381

  • Re Roberts [1978] 3 All ER 225

  • Re Poete [1952] 2 All ER 559

VOID MARRIAGE

For a marriage to be valid, parties must:

  1. Possess legal capacity to marry.

  2. Comply with formalities (e.g., marriage license, witnesses).

  3. Give voluntary consent to the marriage.

  • Any failure in these aspects renders the marriage void.

A. Lack of Capacity

A purported marriage may be void if:

  • The parties are within prohibited degrees of relationship, such as siblings or close relatives.

  • Either party is below the minimum marriage age as stipulated by law.

  • The parties knowingly and willfully fail to adhere to required legal formalities, such as not having a marriage license.

  • The marriage is bigamous, meaning one party is already married to someone else.

  • The parties are not distinctly male and female according to legal definitions.

Relevant Case Law:

  • Pugh v. Pugh [1951] 2 All ER 680

  • Mohamed v. Knott [1968] 2 WLR 1446

  • Rampal v. Rampal [2000] 2 FLR 763

  • Wing v. Taylor 164 ER 1002

  • Padoleccia v. Padoleccia [1967] 3 All ER 863

  • Corbett v. Corbett [1970] 2 All ER 33

  • R v. Tan [1983] 2 All ER 12

  • Re North and Matheson 52 DLR (3d) 380

B. Lack of Formalities

  • Failure to adhere to formal requirements will render a marriage void only when expressly stipulated by legislation.

  • Formalities may include the method of marriage, notice periods, or witnessing requirements stipulated by law.

Relevant Case Law:

  • Campbell v. Corley (1856) 4 WR 675

  • Catteral v. Sweetman 163 ER 1047

  • Dancer v. Dancer [1948] 2 All ER 731

  • Puttick v. AG [1979] 3 All ER 463

  • Greaves v. Greaves (1872) LR 2 P&D 423

C. Lack of Consent

A marriage is based on the voluntary declarations of consent by both parties.

  • If consent is obtained through insanity, duress, or a misunderstanding about the identity of the other party or nature of the ceremony, the marriage will be void.

i. Insanity

  • A marriage is void if either party cannot understand the marriage contract.

  • The test for capacity was defined by Lord Justice Singleton in Re Park [1953] 2 All ER 1411, CA as:

    • “Was the deceased…capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it?”

Relevant Case Law:

  • Durham v Durham (1885) 10 PD 80

  • Re Roberts [1978] 3 All ER 225

  • Turner v. Meyers 161 ER 600

  • Re Hill, Ernest Clarence

ii. Duress

  • A marriage is void if entered under duress.

  • The requirement for pressure differs from that in criminal law; in family law, the threat need not be of physical harm.

Relevant Case Law:

  • Scott v. Sebright (1886) LR 12 PD 21

  • Buckland v. Buckland [1967] 2 All ER 300

  • Hussein v. Hussein [1938] 2 All ER 344

  • Griffith v. Griffith [1944] IR 35

  • Small v. Small BB 1990 HC 33

  • Example: In Lee v Lee (1928) 3 SW 2d 672, the petitioner M sought to have a marriage declared void due to duress from W’s father, exemplifying that duress need not originate solely from the other party to be valid.

Additional Case Law:

  • Szechter v. Szechter [1970] 3 All ER 905

  • Parojic v. Parojic [1958] 1 WLR 1

  • Singh v Singh [1971] 2 All ER 828, CA

  • Hirani v Hirani (1982) 4 FLR 232, CA

  • Mahmood v Mahmood [1993] SLT 589

  • Mahmud v Mahmud [1994] SLT 599

  • In the Marriage of S (1980) Fam LR 831

iii. Mistake

  • A marriage will be void where either party is mistaken about:

    • A. the identity of the other party (e.g., believing one is marrying a different person)

    • B. the nature of the ceremony (e.g., believing it is a less formal agreement).

Relevant Case Law:

  • Way v Way [1949] 2 All ER 959

  • Vervaeke v Smith [1982] 2 All ER 144

  • Miliante v. Ogunwomoju [1994] Fam law 17

  • Kassim v. Kassim [1962] 3 All ER 426

  • Example: In C v C [1942] NZLR 356, a woman M sought annulment due to marrying a man she thought was a famous boxer; the annulment was denied as her mistake was about attributes, not identity.

Additional References:

  • In the Marriage of C&D (1979) 35 FLR 340

  • Valier v Valier (1925) 133 LT 830

  • Mehta v Mehta [1945] 2 All ER 690

iv. Fraud

  • Relevant Case Law:

    • Perkins v. Perkins BB 1984 HC 26

VOIDABLE MARRIAGE

  • Impotence or incapacity to consummate a marriage can render it voidable at common law.

  • According to Dr. Lushington in D v. A (1845) 163 ER 1039, consummation requires ordinary and complete sexual intercourse rather than partial and imperfect.

Relevant Case Law:

  • Baxter v Baxter [1947] 2 All ER 886

  • Cackett v Cackett [1950] 1 All ER 677

  • Incapacity must be proven in order to annul the marriage; incapacity may be physical or psychological.

Additional Case Law:

  • Napier v. Napier [1915] P, 184

  • S v. S [1962] AC, 55

  • W v. W [1967] 1 WLR 1554

  • Incapacity may be presumed when it cannot be established.

Further References:

  • Yhap v. Yhap [1938] LRBG 160

  • Melbourne v. Melbourne [1950] LRBG

  • Harthan v. Harthan [1948] 2 All ER 639

  • Impotence can be either absolute or relative.

  • If the parties view another act (often a religious ceremony) as necessary for consummation, refusal to engage in this act indicates refusal to consummate.

Relevant Case Law:

  • Jodla v Jodla [1960] 1 All ER 625

  • Kaur v Singh [1972] 1 All ER 292

WILFUL REFUSAL TO CONSUMMATE THE MARRIAGE

  • Willful refusal denotes a definite decision made without lawful justification.

  • Lord Jowitt LC in Horton v Horton [1947] 2 All ER 871 stated:

    • “I do not think it desirable to attempt any definition of…‘wilful refusal to consummate the marriage’. The words connote a settled and definite decision arrived at without just excuse.”

Relevant Case Law:

  • Ramnath v Ramnath TT 1983 HC 59

  • Treasure v Treasure JM 1978 SC 17

  • Harthan v. Harthan [1943] 2 All ER 639

BARS TO RELIEF

  • The court may deny a nullity decree based on the petitioner's conduct, which bars nullity relief.

  • Three primary bars to relief:

    1. Approbation: If the petitioner has affirmed the marriage through conduct or statements.

    2. Estoppel: Preventing a party from arguing against their previous claims.

    3. Collusion: When parties cooperate to deceive the court regarding the marriage’s validity.

Relevant Case Law:

  • Gittens v. Gittens 25 WIR 550

  • Scott v Scott [1959] 1 All ER 531

  • Morgan v Morgan [1959] 1 All ER 539

  • Tindall v. Tindall [1953] 1 All ER 139

  • D v. D [1979] 3 All ER 185

EFFECT OF THE DECREE

  • In a void marriage, it is treated as if it never existed; any decree will affirm this.

  • In a voidable marriage, it is valid until an annulment is issued; however, case law shows inconsistencies in this regard.

Relevant Case Law:

  • Newbold v. AG [1931] P 75

  • De Reneville v. De Reneville [1949] 1 All ER 56

  • Wiggins v. Wiggins [1958] 2 All ER 555