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Grounds for nullity - overviewVoid and voidable marriages
A marriage may be annulled if the marriage is void or voidable.
a void marriage is said to be one that is regarded by the court as never having taken place and is void at it's inception. A decree is simply declaratory
a voidable marriage is one that will be regarded as a valid marriage subsisting until a decree annulling it has been pronounced by a court of competent jurisdiction
The Matrimonial Causes Act 1973 (MCA 1973) sets out the grounds on which a marriage may be void or voidable. Corresponding provisions are set out in the Civil Partnership Act 2004 (CPA 2004): see Termination of civil partnerships. There are specific provisions relating to marriages instituted and celebrated before 1 August 1971, but they are not dealt with here, reference being made solely to marriages celebrated after 31 July 1971. The nullity grounds for marriage are detailed below.
Grounds on which a marriage is void
the marriage is not valid under the provisions of the Marriage Acts 1949 to 1986: this includes the fact that the parties are within the prohibited degrees of relationship, ie either party is under the age of 16, or the parties have married in disregard of certain requirements as to the formation of marriage
at the time of the marriage either party was already lawfully married or a civil partner
the parties are not respectively male and female: this ground has raised issues of human rights and is further affected by the introduction of the Gender Recognition Act 2004 (GRA 2004)
in the case of a polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales
Grounds on which a marriage is voidable
the marriage has not been consummated owing to the incapacity of either party to consummate it: the court has to be satisfied on the higher standard of proof, beyond reasonable doubt, that the spouse was at the time of the marriage and has been thereafter incapable of consummating it
the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it
either party did not give valid consent to the marriage, whether through duress, mistake, unsoundness of mind or otherwise; the otherwise provision may include being under the influence of drugs
at the time of the marriage, either party was suffering from a mental disorder
at the time of the marriage, the respondent was suffering from venereal disease in a communicable form
at the time of the marriage, the respondent was pregnant by someone else
an interim gender recognition certificate under GRA 2004 has, since the marriage, been issued to either party
the respondent is a person whose gender at the time of the marriage had become acquired under GRA 2004
There is a general bar to obtaining a decree of nullity and the court will refuse to grant one if satisfied that:
the petitioner with knowledge that it was open to them to have the marriage avoided, so conducted themselves in relation to the respondent as to lead the respondent reasonably to believe that they would not seek to do so, and
that it would be unjust to the respondent to grant the decree
There are additional special bars where a decree will be refused, such as where, in reliance on certain specified grounds, eg venereal disease, the petitioner cannot satisfy the court that they were ignorant of those facts at the time of the marriage.
In relation to certain other prescribed cases, including where the respondent is a person whose gender at the time of the marriage is a gender acquired under GRA 2004, the court must not grant a decree of nullity unless satisfied that the proceedings were instituted within the time limit prescribed, unless leave (permission) can be obtained on the basis that the petitioner has at some time in that period suffered from a mental disorder within the meaning of the Mental Health Act 1983 and considers that it would, in all the circumstances, be just to grant permission.
In relation to proceedings based on an interim gender recognition certificate being issued after the date of the marriage to either of the parties, the court must refuse a decree if proceedings to have the marriage annulled are not started within six months of the issue of the interim certificate.
If there have been previous proceedings between the parties that would have resulted in a recognition of the marriage, although the marriage may be void the parties may be estopped from obtaining a decree of nullity.
The effect of a void or voidable marriage
The effects include:
children of void marriages may be legitimated under the provisions of the Legitimacy Act 1976 as amended in certain situations: a child legitimated in this way enjoys the same legal rights as a legitimate born child
any decree of nullity granted after 31 July 1971 in respect of a voidable marriage has the effect of annulling the marriage only after the date of decree absolute and therefore a child conceived or born during the subsistence of the marriage remains legitimate.
The court may exercise its powers under MCA 1973 (or in the case of civil partnership under the corresponding CPA 2004 provisions) to make orders for financial provision and may also make orders in relation to the children whether the marriage is found to be void or voidable.
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