Family: L2 – The Law of Nullity
Invalid ab initio (from the beginning)
Defect concerning the valid formation of the marriage:
- capacity or formal requirements not met
because the marriage was never legally formed, it is possible to obtain a decree after
one has died.
s11 Matrimonial Causes Act 1973: A marriage shall be void on the following grounds:
(a) it is not a valid marriage under the provisions of the Marriage Acts 1949-1986 i.e.
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the
formation of marriage;
(b) at the time of the marriage either party was already lawfully married/ a civil partner
(c) that the parties are not respectively male and female; *no longer the case, the was removed
by the M(SSC)A 2013
(d) in the case of a polygamous marriage entered into outside England and Wales, that either
party was at the time of the marriage domiciled in England and Wales.
Void Marriages:
(a) Lack of capacity to marry:
- Whiston v Whiston [1995] 2 FLR 268 - already married
- J v S-T (Formerly J) (Transsexual: Ancillary Relief) [1997] 1 FLR 402: (not
male and female, respectively) (because of the M(SSC) A 2013, this would no
longer be a void marriage)
(b) Non-compliance with formalities:
- s11(a)iii MCA 1973.
- Non-marriages vs. void marriages: Non-marriage: there will be no decree of
nullity granted and no possibility to apply for property and financial relief.
- Ghandi v Patel [2002] 1 FLR 603: ceremony had taken place in a restaurant
and both parties knew that the husband was already married in another
jurisdiction - no marriage at all
- Gereis v Yagoub [1997] 1 FLR 854: void - marriage ceremony recognisable as
a marriage, but priest not licensed, no notice of marriage
- Dukali v Lamrani [2012] EWHC 1748: the parties had married at the
Moroccan consular office. They believed that this was a valid place for the
marriage. Held: Parties’ belief that it was a lawful ceremony insufficient if no
resemblance to a marriage under English law.
Formal defects which may not invalidate a marriage
- s25 & 49 MA 1949: “knowingly and wilfully”
- Chief Adjudication Officer v Bath [2000] 1 FLR 8: it was a minor departure,
therefore valid.
> Guilty knowledge by parties required for void marriages
- MA v JA [2012] EWHC 2219 (Fam): All the requirements of a valid marriage,
but celebrant had not informed parties that failure to give notice was in breach of
the Marriage Act. Held: Valid marriage.
- If it is breached with a minor flaw and the parties did not know, the courts are
more willing to find it valid.
Voidable Marriage:
, Valid and subsisting until annulled by a decree of nullity
Not invalid ab initio
s16 MCA 1973: A decree of nullity in respect of a voidable marriage shall annul the
marriage only as respects any time after the decree has been made absolute, and the
marriage shall, notwithstanding the decree, be treated as if it had existed up to that
time.
Grounds on which a marriage is voidable: s12 MCA 1973
Non-consummation of marriage:
s12(1)(a): “marriage has not been consummated owing to the incapacity of either party to
consummate it”
s12(1)(b): “marriage has not been consummated owing to the willful refusal of the
respondent”
Meaning of consummation:
- P v P [1964] 3 All ER 919 – only one act of intercourse required
- Baxter v Baxter [1948] AC 274 – consummation irrespective of the possibility
of the act resulting in birth (intercourse with contraception)
If the marriage is never consummated but none of the parties complain, then the
marriage is valid.
Incapacity to consummate - s12(1)(a) MCA:
- S v S (otherwise C) [1956] P. 1 – defined it as permanent physical incapacity.
- Singh v Singh [1971] 2 WLR 963: the petitioner tried to say they were incapable of
engaging in sex with spouse because of a mental condition. Court said that it has to
be a repugnance due to psychiatric or sexual aversion, not simple lack of
attraction.
Wilful refusal - s12(1)(b) MCA:
- Horton v Horton [1948] 2 All ER 871: defined as a ‘settled and definite
decision not to consummate without just excuse’ – EG: if they refuse on the first
occasion but are more willing to do it at a later date = not refusal.
- Ford v Ford [1987] Fam. Law 232 - no opportunity to consummate is not
refusal (respondent in prison)
- Kaur v Singh [1972] 1 WLR 105: parties agreed to undergo a religious
ceremony after the civil one and then they won’t consummate. The husband no
longer wanted to do the religious ceremony but still wanted to consummate but
the wife refused - refusal to undergo religious ceremony (upon which
intercourse was dependent)
> A v J [1989] 1 FLR 110 - decision to postpone a religious ceremony
indefinitely = refusal
- New s12(2) MCA < MA 2013 sch. 4 para. 4 - Paragraphs (a) and (b) of
subsection (1) do not apply to the marriage of a same sex couple. – this means
that same sex spouse can petition on the basis of non-consummation.
> Definition of sex in a same sex relationship is more difficult.
Invalid consent:
s12(1)(c) MCA 1973: “either party to the marriage did not validly consent to it,
whether in consequence of duress, mistake, unsoundness of mind or otherwise”
a. Duress:
- Szechter v Szechter [1971] P 286 - high threshold: only subject to duress only
if threat to ‘life, limb or liberty’
Invalid ab initio (from the beginning)
Defect concerning the valid formation of the marriage:
- capacity or formal requirements not met
because the marriage was never legally formed, it is possible to obtain a decree after
one has died.
s11 Matrimonial Causes Act 1973: A marriage shall be void on the following grounds:
(a) it is not a valid marriage under the provisions of the Marriage Acts 1949-1986 i.e.
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the
formation of marriage;
(b) at the time of the marriage either party was already lawfully married/ a civil partner
(c) that the parties are not respectively male and female; *no longer the case, the was removed
by the M(SSC)A 2013
(d) in the case of a polygamous marriage entered into outside England and Wales, that either
party was at the time of the marriage domiciled in England and Wales.
Void Marriages:
(a) Lack of capacity to marry:
- Whiston v Whiston [1995] 2 FLR 268 - already married
- J v S-T (Formerly J) (Transsexual: Ancillary Relief) [1997] 1 FLR 402: (not
male and female, respectively) (because of the M(SSC) A 2013, this would no
longer be a void marriage)
(b) Non-compliance with formalities:
- s11(a)iii MCA 1973.
- Non-marriages vs. void marriages: Non-marriage: there will be no decree of
nullity granted and no possibility to apply for property and financial relief.
- Ghandi v Patel [2002] 1 FLR 603: ceremony had taken place in a restaurant
and both parties knew that the husband was already married in another
jurisdiction - no marriage at all
- Gereis v Yagoub [1997] 1 FLR 854: void - marriage ceremony recognisable as
a marriage, but priest not licensed, no notice of marriage
- Dukali v Lamrani [2012] EWHC 1748: the parties had married at the
Moroccan consular office. They believed that this was a valid place for the
marriage. Held: Parties’ belief that it was a lawful ceremony insufficient if no
resemblance to a marriage under English law.
Formal defects which may not invalidate a marriage
- s25 & 49 MA 1949: “knowingly and wilfully”
- Chief Adjudication Officer v Bath [2000] 1 FLR 8: it was a minor departure,
therefore valid.
> Guilty knowledge by parties required for void marriages
- MA v JA [2012] EWHC 2219 (Fam): All the requirements of a valid marriage,
but celebrant had not informed parties that failure to give notice was in breach of
the Marriage Act. Held: Valid marriage.
- If it is breached with a minor flaw and the parties did not know, the courts are
more willing to find it valid.
Voidable Marriage:
, Valid and subsisting until annulled by a decree of nullity
Not invalid ab initio
s16 MCA 1973: A decree of nullity in respect of a voidable marriage shall annul the
marriage only as respects any time after the decree has been made absolute, and the
marriage shall, notwithstanding the decree, be treated as if it had existed up to that
time.
Grounds on which a marriage is voidable: s12 MCA 1973
Non-consummation of marriage:
s12(1)(a): “marriage has not been consummated owing to the incapacity of either party to
consummate it”
s12(1)(b): “marriage has not been consummated owing to the willful refusal of the
respondent”
Meaning of consummation:
- P v P [1964] 3 All ER 919 – only one act of intercourse required
- Baxter v Baxter [1948] AC 274 – consummation irrespective of the possibility
of the act resulting in birth (intercourse with contraception)
If the marriage is never consummated but none of the parties complain, then the
marriage is valid.
Incapacity to consummate - s12(1)(a) MCA:
- S v S (otherwise C) [1956] P. 1 – defined it as permanent physical incapacity.
- Singh v Singh [1971] 2 WLR 963: the petitioner tried to say they were incapable of
engaging in sex with spouse because of a mental condition. Court said that it has to
be a repugnance due to psychiatric or sexual aversion, not simple lack of
attraction.
Wilful refusal - s12(1)(b) MCA:
- Horton v Horton [1948] 2 All ER 871: defined as a ‘settled and definite
decision not to consummate without just excuse’ – EG: if they refuse on the first
occasion but are more willing to do it at a later date = not refusal.
- Ford v Ford [1987] Fam. Law 232 - no opportunity to consummate is not
refusal (respondent in prison)
- Kaur v Singh [1972] 1 WLR 105: parties agreed to undergo a religious
ceremony after the civil one and then they won’t consummate. The husband no
longer wanted to do the religious ceremony but still wanted to consummate but
the wife refused - refusal to undergo religious ceremony (upon which
intercourse was dependent)
> A v J [1989] 1 FLR 110 - decision to postpone a religious ceremony
indefinitely = refusal
- New s12(2) MCA < MA 2013 sch. 4 para. 4 - Paragraphs (a) and (b) of
subsection (1) do not apply to the marriage of a same sex couple. – this means
that same sex spouse can petition on the basis of non-consummation.
> Definition of sex in a same sex relationship is more difficult.
Invalid consent:
s12(1)(c) MCA 1973: “either party to the marriage did not validly consent to it,
whether in consequence of duress, mistake, unsoundness of mind or otherwise”
a. Duress:
- Szechter v Szechter [1971] P 286 - high threshold: only subject to duress only
if threat to ‘life, limb or liberty’
