Chapter 3 - Nullity, Void and Voidable Marriages

Question 1

When determining if the marriage has existed, what is the difference between a void marriage and a voidable marriage?

Answer 1

A void marriage is void from the beginning.

A voidable marriage is valid in all respects unless and until a nullity of marriage order is obtained from the court.

Question 2

Who can challenge the validity of a void marriage?

Answer 2

Any interested party may challenge the validity of a void marriage.

Question 3

Who can challenge the validity of a voidable marriage?

Answer 3

Only the parties themselves can apply to annul a voidable marriage.

Question 4

When can the validity of a void marriage be challenged?

Answer 4

A void marriage may be challenged at any time, even after the death of one or both of the parties.

Question 5

When can the validity of a voidable marriage be challenged?

Answer 5

A voidable marriage can only be challenged during the lifetime of the parties.

Question 6

What are the different grounds for a marriage to be void?

Answer 6

S11 Matrimonial Causes Act 1973
S11(a)(i) - The parties are too closely related
S11(a)(ii) - Either party us under 16
S11(a)(iii) - Certain formalities have not been complied with
S11(b) -Either party was already married or a civil partner
S11(d) - For polygamous marriage outside of England and Wales, one party was domiciled in England and Wales.

Question 7

Where are the grounds for a voidable marriage found?

Answer 7

S12 Matrimonial Causes Act 1973

Question 8

Dredge v Dredge [1947]

Answer 8

Voidable Marriage - Non consummation
Sexual intercourse before marriage is not consummation

Question 9

R v R [1952]

Answer 9

Voidable Marriages - Non consummation
Ejaculation is not necessary for consummation

Question 10

S12(a) Matrimonial Causes Act 1973?

Answer 10

Non-consummation due to incapacity is a ground for a marriage to be voidable.

The incapacity must be permanent and incurable.

Question 11

S v S [1962]

Answer 11

Voidable Marriages - Non-consummation due to incapacity

The relevant time for assessing whether the incapacity is permanent is the date of the hearing. In this case, the respondent underwent an operation shortly before the hearing, which offered a reasonable hope of a cure. The 16 years prior of not being able to consummate were no longer relevant, as the incapacity was clearly not permanent.

Question 12

Who can apply for decree of nullity relying on non-consummation due to incapacity?

Answer 12

Either party may apply on the ground of incapacity and it is for the applicant to prove that the incapacity exists.

A party may rely on their own incapacity, but they must not have known about the incapacity at the time of the marriage and led the responded to believe that they will not seek a decree.

Question 13

Horton v Horton [1947]

Answer 13

Voidable marriages - Non consummation due to wilful refusal

The wilful refusal must be a settled and definite decision arrived at without just excuse.

Question 14

Morgan v Morgan [1959]

Answer 14

Voidable marriages - Non consummation due to wilful refusal

An elderly couple got married primarily for companionship. In these circumstances, a pre-marital agreement not to have intercourse prevented either party from alleging wilful refusal to consummate.

Question 15

In what circumstances may consent not be valid and therefore lead to a voidable marriage?

Answer 15

S12(c) MCA 1973
Under duress
By mistake
By a person of unsound mind

Question 16

Singh v Singh [1971]

Answer 16

Voidable marriage - consent not valid due to duress

An arranged marriage between two Sikhs was held to be valid as the girl consented out of a sense of obligation, rather than a sense of fear.

Fear must be present and sufficiently grave to mean that true consent has not been given. A sense of obligation is not sufficient.

Question 17

Hirani v Hirani [1982]

Answer 17

Voidable marriage - consent not valid due to duress

The test as to whether or not the fear held by the applicant is sufficient to establish that consent was provided under duress, is a subjective test.

If the applicant gave consent because she was genuinely in fear, it is irrelevant that others of ordinary courage might not have consented. In this case, the threats by the applicant’s parents invalidated her consent.

The crucial question asked by the court is whether the threats constituted “undue pressure overbearing her will”.

Question 18

When will a “mistake” invalidate consent and lead to a voidable marriage?

Answer 18

A mistake will invalidate a marriage only if it relates to the nature of the ceremony or the identity of the other party.

Question 19

In The Estate of Park [1953]

Answer 19

The test for establishing if consent is invalidated due to “unsoundness of mind” and therefore leading to a voidable marriage.

This concerns a person’s ability to understand the nature of marriage when providing consent.

“To ascertain the nature of the contract of marriage, a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that … it cannot be said that he understands the nature of the contract”.

Question 20

What are the three potential bars to a nullity application found in S13 MCA 1973?

Answer 20

1. If the applicant knew that they could have the marriage annulled and led the respondent to believe that they would not
2. In relation to some of the grounds, delay in taking proceedings
3. In relation to some of the grounds, the applicant must not have known about the problem.

Question 21

For an application of nullity to be successful, an applicant must start proceedings within 3 years of the date of the marriage if intending to rely on what grounds?

Answer 21

lack of consent
mental disorder
respondent’s STI
pregnancy by another
respondent’s acquired gender

(everything but non-consummation due to incapacity or wilful refusal)

Question 22

For an application of nullity to be successful, an applicant must not know about the problem at the time of the marriage, if intending to rely on what grounds?

Answer 22

respondent’s STI
pregnancy by another
respondent’s acquired gender

Question 23

What are the effects of a decree annulling a voidable marriage according to S16 MCA 1973?

Answer 23

A voidable marriage is only treated as annulled from the date the final decree is made. This means that the marriage was valid from the date of the ceremony to the date of the final decree.

This means that any children born will be legitimate and any will will made before the marriage will have been revoked by the marriage.

The parties can apply for financial orders under MCA 1973 in the same way as for a divorce or a void marriage.

Question 24

What is the difference between a void marriage and a non-qualifying marriage / non-marriage

Answer 24

A ‘non-qualifying ceremony’, sometimes referred to as a ‘non-marriage’, is a ceremony that falls so far short of the required formalities for a valid marriage ceremony, that it cannot even be considered a ‘void’ marriage.

Akhter v Khan [2010] - A couple entered into an Islamic marriage in England (a nikah) but this did not comply with the necessary formalities for a valid marriage. The ceremony had not been performed in a registered building, no notice had been given to the registrar, no authorised person was present and no certificates had been issued.

The parties did not have a subsequent civil ceremony and therefore the religious ceremony was a “non qualifying ceremony”. The union was classed as a “non qualifying ceremony” and therefore not a void or a voidable marriage.