The law of nullity
Where the marriage is annulled, the law recognises that there has been some flaw in the
establishment of the marriage, rendering it ineffective.
VOID MARRIAGE
If there is a defect concerning the valid formation of the marriage: capacity or formal requirements
have not been met, the marriage will be invalid ab initio.
S.11 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. The parties are within the prohibited degrees of relationship
ii. Either party is under the age of sixteen or
iii. The parties are not respectively male and female
iv. The parties have intermarried in disregard of certain requirements as to the formation of
marriage
B. At the time of the marriage either part was already lawfully married/ a civil partnership
C. In the case of a polygamous marriage entered into outside England and Wales, that either part
was at the time of the marriage domiciled in England and Wales.
A lack of capacity to marry
Whiston v Whiston 1995- the husband deceived his wife posing as a male when he was a female at
birth. Due to the previous law this marriage was void.
Non-compliance with formalities
S.11(a) iii MCA 1973
Non marriages vs void marriages
Non marriage: no decree of nullity granted. No possibility to apply for property and financial relief
Ghandi v Patel 2002- no marriage at all as they married in a restaurant and the wife was aware that
the husband was already married in another jurisdiction.
Gereis v Yagoub 1997- void marriage as marriage ceremony was recognisable as a marriage but the
priest was not licenced, no notice of marriage.
Dukali v Lamrani 2012- parties believed the marriage was valid. There was insufficient if no
resemblance to a marriage under English law so this belief was insufficient.
Formal defects which may not invalidate a marriage
Chief Adjudication Officer v Bath 2000- when the husband died, the wife applied for. It transpired
that the venue where they were married was not registered and the parties were new to the country
and the customs. Courts treated it as a valid marriage as they had not breached the law knowingly
MA v JA 2012- the parties had not been informed by the celebrant that failure to give notice was in
breach of the Marriage Act. This was a valid marriage.
, VOIDABLE MARRIAGE
Valid and subsisting until annulled by a decree of nullity.
S.16 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:
S.12 MCA 1973:
a) Non-consummation of marriage owing to the incapacity
b) Non-consumation of marriage owing to the wilful refusal
c) Invalid consent
d) Mental disorder rendering party unfitted for marriage
e) Communicable venereal disease
f) Pregnancy by another man at the time of the marriage
g) Interim gender recognition certificate issued to either party after marriage
h) Respondents gender at the time of marriage was the acquired gender (GRA 2004)
Non-consummation of marriage
S.12(1)(a) MCA 1973: marriage has not been consummated owing to the incapacity of either party to
consummate it. (either party can petition)
S.12(1)(b) MCA 1973: marriage has not been consummated owing to the wilful refusal of the
respondent. (only the one not refusing can petition)
Meaning of consummation
P v P 1964- only one act of intercourse is required
Baxter v Baxter 1948- consummation irrespective of the possibility of the act resulting in birth
(intercourse with contraception)
S.12(1)(a) Incapacity to consummate
S v S (otherwise C) 1956- permanent physical incapacity
Singh v Singh 1971- repugnance due to psychiatric or sexual aversion, not simple lack of attraction.
S.12(1)(b) Wilful refusal
Horton v Horton 1948- settled and definite decision not to consummate without just excuse
Ford v Ford 1987- no opportunity to consummate is not refusal (respondent in prison)
Kaur v Singh 1972- parties agreed to undergo a religious ceremony after the civil ceremony and only
after the religious ceremony would they consummate. The husband late refused to undergo a
religious ceremony.
A v J 1989- decision to postpone a religious ceremony indefinitely is refusal.
S.12(2) MCA 1973: subsection 1, paragraph (a) and (b) do not apply to the marriage of a
same sex couple. Due to definition difficulty of sex between same sec couples.
Where the marriage is annulled, the law recognises that there has been some flaw in the
establishment of the marriage, rendering it ineffective.
VOID MARRIAGE
If there is a defect concerning the valid formation of the marriage: capacity or formal requirements
have not been met, the marriage will be invalid ab initio.
S.11 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. The parties are within the prohibited degrees of relationship
ii. Either party is under the age of sixteen or
iii. The parties are not respectively male and female
iv. The parties have intermarried in disregard of certain requirements as to the formation of
marriage
B. At the time of the marriage either part was already lawfully married/ a civil partnership
C. In the case of a polygamous marriage entered into outside England and Wales, that either part
was at the time of the marriage domiciled in England and Wales.
A lack of capacity to marry
Whiston v Whiston 1995- the husband deceived his wife posing as a male when he was a female at
birth. Due to the previous law this marriage was void.
Non-compliance with formalities
S.11(a) iii MCA 1973
Non marriages vs void marriages
Non marriage: no decree of nullity granted. No possibility to apply for property and financial relief
Ghandi v Patel 2002- no marriage at all as they married in a restaurant and the wife was aware that
the husband was already married in another jurisdiction.
Gereis v Yagoub 1997- void marriage as marriage ceremony was recognisable as a marriage but the
priest was not licenced, no notice of marriage.
Dukali v Lamrani 2012- parties believed the marriage was valid. There was insufficient if no
resemblance to a marriage under English law so this belief was insufficient.
Formal defects which may not invalidate a marriage
Chief Adjudication Officer v Bath 2000- when the husband died, the wife applied for. It transpired
that the venue where they were married was not registered and the parties were new to the country
and the customs. Courts treated it as a valid marriage as they had not breached the law knowingly
MA v JA 2012- the parties had not been informed by the celebrant that failure to give notice was in
breach of the Marriage Act. This was a valid marriage.
, VOIDABLE MARRIAGE
Valid and subsisting until annulled by a decree of nullity.
S.16 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:
S.12 MCA 1973:
a) Non-consummation of marriage owing to the incapacity
b) Non-consumation of marriage owing to the wilful refusal
c) Invalid consent
d) Mental disorder rendering party unfitted for marriage
e) Communicable venereal disease
f) Pregnancy by another man at the time of the marriage
g) Interim gender recognition certificate issued to either party after marriage
h) Respondents gender at the time of marriage was the acquired gender (GRA 2004)
Non-consummation of marriage
S.12(1)(a) MCA 1973: marriage has not been consummated owing to the incapacity of either party to
consummate it. (either party can petition)
S.12(1)(b) MCA 1973: marriage has not been consummated owing to the wilful refusal of the
respondent. (only the one not refusing can petition)
Meaning of consummation
P v P 1964- only one act of intercourse is required
Baxter v Baxter 1948- consummation irrespective of the possibility of the act resulting in birth
(intercourse with contraception)
S.12(1)(a) Incapacity to consummate
S v S (otherwise C) 1956- permanent physical incapacity
Singh v Singh 1971- repugnance due to psychiatric or sexual aversion, not simple lack of attraction.
S.12(1)(b) Wilful refusal
Horton v Horton 1948- settled and definite decision not to consummate without just excuse
Ford v Ford 1987- no opportunity to consummate is not refusal (respondent in prison)
Kaur v Singh 1972- parties agreed to undergo a religious ceremony after the civil ceremony and only
after the religious ceremony would they consummate. The husband late refused to undergo a
religious ceremony.
A v J 1989- decision to postpone a religious ceremony indefinitely is refusal.
S.12(2) MCA 1973: subsection 1, paragraph (a) and (b) do not apply to the marriage of a
same sex couple. Due to definition difficulty of sex between same sec couples.
