The Gazette 1976

G A Z E T T E

N O V E M B E R 1976

SOCIETY OF YOUNG SOLICITORS

2. BREAKDOWN OF MARRIAGE

PART I

(a) NULLITY

In considering Decrees of Nullity, it is important to

clarify the distinction between void and voidable mar-

riages.

Void Marriages

A void marriage is a marriage which is void

initio.

It is never a marriage in fact or in law. Con-

sequently, no Decree is necessary to set it aside. Either

party to a void marriage may lawfully contract a valid

marriage to someone else without having the first mar-

riage formally annulled, provided they inform and sat-

isfy the relevant authorities that their former mar-

riage was void. Although the parties have been through

the ceremony of marriage, they never have acquired

the status of husband and wife owing to the presence

of some impediment. Accordingly, a Decrec of Nullity

of such a marriage will only be declaratory and can-

not effect any change in the status of the parties.

If a marriage is void, any person with an interest

in so doing may prove, as a question of fact, that there

has never been a marriage at all.

A void marriage cannot be turned into a valid mar-

riage by the ratification of either party.

Voidable Marriages

A voidable marriage is a marriage which is at its

inception a valid and subsisting marriage and remains

so until a Decree of a competent Civil Court, and not

an Ecclesiastical Court, pronounces it to be void. The

effect of an impediment is to empower one of the

spouses to take steps to have it turned into a void

marriage. A voidable marriage may only be set aside by

a Decree of Nullity. Once this has been done, the De-

cree has a retrospective effect, so the parties arc deem-

ed in law never to have been married at all. No one

but the parties may challenge the validity of voidable

marriage. Hcnce, a voidable marriage can never be

challenged when one of the parties is dead.

GROUNDS ON WHICH A MARRIAGE WILL

BE DEEMED VOID

1. LACK OF CAPACITY

(a) Defect in Formal Requirements

If for example either party is under age, or already

married, or the parties are related to one another with-

in the prohibited degrees of relationship, or arc both

of the same sex, the marriage will be declared void.

(b) Formal Defect

The marriage will be void. if. for example:

(i) There is failure to comply with the relevant pro-

visions of the Marriage Act 1972.

(ii) The marriage is solemnised in a place other

than a churcli or chapel in which the banns were pub-

lished, or

(iii) The marriage was not solemnised before the

Registrar or other appointed priest or clergyman.

ABSENCE OF TRUE CONSENT

As the marriage is a contract, the absence of true

consent will invalidate the ceremony. The factors which

may negative a parly's consent are:

(a) Insanity

If either party was so insane at the time of the ccre-

mony as to be unable to understand the nature of the

contract he was entering into, the marriage can be

declared void. The burden of proof lies with the parly

impeaching the validity of the marriage.

(b) Drunkenness

The effect of drunkenness will be the same as that

of insanity. If the drunkenness induced temporary in-

sanity of such a nature as to make the marriage void,

or for that reason or otherwise, rendered the party

incapable of understanding the nature of the contract

he was entering into, the marriage would be deemed

void. The cffect of addiction to drugs would probably

be the same as the effect of drunkenness.

3. MISTAKE

Mistake will make the marriage void in two cases

only:

(a) If there is mistake as to the identity of the other

parly.

(b) If there is mistake as to the nature of the cere-

mony.

If each party appreciates that he is going through

a form of marriage with the other, no other type of

mistake can make the contract void.

4. FRAUD AND MISREPRESENTATION

The principle of fraud or misrepresentation will only

make the marriage void if the misrepresentation in-

duces an operative mistake (for example as to the

nature of the cercmony that was being performed).

5. FEAR AND DURESS

For example, if one of the parties is induced to en-

ter into a marriage which, in the absence of compul-

sion, he would never have entered into at all, the mar-

riage will be declared void. However, the fear must be

unjustly imposed.

GROUNDS ON WHICH A MARRIAGE WILL

BE VOIDABLE

Non-Consummation

A marriage is said to be consummated as soon as

the parties have sexual intercourse after solemnisation.

The inability to consummate the marriage may be due

195