Nullity of Marriage

INTRODUCTION

  • The focus of the course is on the occasions where a relationship deviates from the common law conception of marriage to the extent that the courts will determine that no legal marriage exists.

  • The law concerning the nullity of marriages stems from canon law, which was administered prior to 1873 by ecclesiastical courts. This law is now codified in Acts of Parliament.

  • Decrees of nullity are notably rare when compared to divorces, with strict criteria and legal processes required to establish a null marriage.

VOID AND VOIDABLE MARRIAGES

  • A null marriage can be categorized as either void or voidable.

    • Voidable Marriage:

    • Remains valid until formally annulled by a court order. Individuals may not know of the circumstances rendering it voidable, such as lack of consent or incapacity. Conditions for annulment include the grounding reasons for the voidable claim, which should be substantiated during proceedings.

    • Void Marriage:

    • Considered void from the outset, irrespective of any court decree. It has no legal effect, meaning that individuals are not recognized as having been married at any point legally.

    • Reference: De Reneville v De Reneville [1948] 1 All ER 56.

  • Public Policy:

    • There are essential distinctions in the treatment and implications of void and voidable marriages based on public policy considerations, as void marriages aim to deter fraudulent or improper conduct in the institution of marriage.

GROUNDS RENDERING MARRIAGE VOID

  • Various grounds can render a marriage void:

    • Lack of Capacity:

    • Includes factors such as:

      • Age: Parties must meet the legal minimum age for marriage as established by jurisdictional legislation.

      • Prohibited Degrees: Marriages between closely related individuals, such as siblings or parents and children, are prohibited to avoid consanguinity.

      • Single Status: Parties must not be already married according to the law of domicile. This prevents bigamous or polygamous unions.

      • Lack of Formalities:

      • Marriage must adhere to applicable legislation, particularly those stating formal procedures for solemnization. This includes obtaining marriage licenses and following necessary rituals or registrations according to the law.

      • Lack of Consent:

      • Consent must be given freely and voluntarily by both parties, which can be contested in certain circumstances.

      • Insanity:

      • Determined by the test from The Re Park [1953] 2 All ER 1411, requiring evidence that a party lacked mental capacity at the time of marriage.

      • Duress:

      • Threats to life, limb, or personal liberty negate consent. Examples include:

        • Hirani v Hirani (1982) 4 FLR 232

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

      • Mistake:

      • Consent is invalidated when there is a fundamental mistake regarding the identity of the other party or the nature of the marriage ceremony. Examples include:

        • C v. C [1942] NZLR 356

        • Valier v Valier (1925) 133 LT 830

RENDERING A MARRIAGE VOIDABLE

  • Incapacity to Consummate the Marriage:

    • Reference: D v. A (1845) 163 ER 1039, indicating that non-consummation for reasons beyond control can annul a marriage.

  • Requirements for Petitioning:

    • The criteria stipulate who may petition and the timing for such petitions, ensuring that annulments are pursued promptly and within legal limits.

  • Personal Grounds of Incapacity:

    • The petitioner can seek annulment based on personal incapacity, which may be physical or mental, affecting one's ability to fulfill marital obligations.

    • Supervening Incapacity:

    • This is a condition that arises after marriage which impacts its validity, such as a partner developing a severe illness.

  • Presumed Incapacity:

    • Other grounds for considering a marriage voidable include:

    • One partner suffering from a venereal disease, which can impact the health of the other partner.

    • The other partner is pregnant by someone not the spouse, introducing complexities regarding paternity and legitimacy.

BARS TO RELIEF

  • There are three bars to relief that may prevent the granting of a decree of nullity:

    • Approbation:

    • This occurs when the petitioner has previously accepted or approved the marriage, indicating acquiescence to its existence.

    • Estoppel:

    • A legal principle preventing a party from arguing something contrary to a claim they have previously made or agreed to, often inhibiting recovery.

    • Collusion:

    • Refers to an agreement between the parties to deceive the court, which undermines the integrity of judicial proceedings and may be a basis to deny annulments.

  • Relevant Cases:

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

    • Pettit v. Pettit [1962] 3 WLR 919

    • Gittens v. Gittens 25 WIR 550

    • The court may refuse to grant a nullity decree based on the petitioner's conduct, which may bar relief for nullity.

EFFECT OF DECREE

  • Effect on a Void Marriage:

    • It is treated as if it never existed; any decree obtained supports this position.

    • Importantly, a decree for a void marriage need not be sought as the legal implications arise automatically.

  • Effect on a Voidable Marriage:

    • The decree wording may imply retrospective effect; however, case law presents conflicting views, necessitating careful consideration of decisions.

    • A voidable marriage remains valid until annulled by a court, underscoring the importance of judicial review regarding its status.

  • Relevant Cases:

    • Newbold v. AG [1931] P 75

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

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