The Gazette 1978

GAZETTE

DECEMBER 1978

that at the time of its celebration that second marriage

would be invalid. But the authorities are in conflict on the

question of the retrospective effect of the subsequent

decree on the validity of the second marriage. The Irish

cases

(by amendment

M. McD. v. P.) [

1916] 2 I.R.

400 and

Mason v Mason

[ 1944] N.I. 134) hold that the

second marriage is invalidated by the subsequent decree,

thus for example preventing prosecution of the parties for

bigamy. The English case of

Wiggins v Wiggins

([ 1958] 2

All E.R. 555), Australian and New Zealand cases, and

the weight of academic opinion (see e.g. J. Jackson "The

Formation and Annulment of Marriage", 2nd ed. 1969,

p.93) support the contrary view.

Unfortunately the proposals in the A.-G.'s Discussion

Document are ambiguous on this matter. (Indeed, it is a

major omission in the Document that it does not discuss

in any detail the many other problems, e.g. concerning

property rights, caused by the principle of the retro-

activity of nullity decrees). The following proposals are

made in the Document which are relevant to the issue:

(1) The distinction between void and voidable

marriages should be abolished. If invalidity arises it

should render the marriage void. (Para. 21);

(2) New legislation should apply to all marriages, not

merely to those entered into after the passing of the

Act. (Para. 26);

(3) A decree of annulment or a declaration of

annulment should be required before a marriage

would be treated as null and void. (Para. 28);

The first two proposals combined suggest that a second

marriage contracted before a decree might be

retrospectively validated by the decree, even though the

second marriage may have been celebrated before the

passing of a reforming Act. This is implied in the

proposal that all invalid marriages should be void.

However, the third proposal would attach to so-called

void marriages a feature which under existing law is the

central characteristic of a voidable marriage, i.e. the need

for a decree before the marriage can be treated as void.

This leaves open the possibility of the

Wiggins v Wiggins

approach, which would not allow the retrospective

validation of the second marriage. This reading of the

proposals is confirmed by the wording of the draft Bill

which, in S.2(l), states that every marriage shall "for all

purposes" be treated as being valid until a decree is

granted.

It is clearly undesirable that this issue be left

unresolved in the new nullity legislation. Would there then

be any objections to a rule which would ensure the

retrospective validation of a second marriage by virtue of

a subsequent civil decree? Such a rule would certainly

have the advantage of encouraging those who have

already married a second time after a Church annulment

to regularise the second marriage. However, in the long

term such a rule might promote the continuation of

speculative marriages, i.e. second marriages within the

Church entered into in the hope of later obtaining a civil

decree. The effect of any change in the law should surely

be to encourage couples to ensure the civil validity of a

second marriage before, not after, they celebrate it. In

short, they should obtain a civil annulment before going

through a second ceremony, and a rule which allows a

civil decree retrospectively to validate a second marriage

does not encourage this.

The problem here is a very delicate one for the

legislature. There is on the one hand the natural desire to

opt for a rule which will regularise existing second

marriages, and on the other hand there is the danger of

encouraging continued disrespect for the civil rules

concerning capacity to marry. One possible compromise

solution would bo to allow a civil decree to give

retrospective validity to second marriages contracted

before the passing of the reforming Act, but not marriages

contracted thereafter.

Response Number Four:

The Legal Protection of Relationships Not Based On

Marriage

Changes in the civil law of nullity cannot be guaranteed

to regularise all second marriages contracted after

Church annulments. Indeed it may well turn out that very

few Church-annulled marriages will also be annulled

civilly. Apart from the inhibiting factor of cost, and the

necessary differences that will continue to exist in the

substantive and procedural requirements of the Church

tribunals and civil courts, a party to a second marriage

may not appreciate the importance of obtaining a civil

annulment of his first marriage until some crisis occurs in

the second marriage (e.g. the death or desertion of one

party) which makes essential a determination of its legal

validity.

In these circumstances if the legislature wishes to

provide protection for the parties to the second marriage,

it may have to consider the enactment of laws to regulate

relationships which are not based on formal marriage, i.e.

laws conferring greater rights and duties on cohabitees

and their children. The increase in the incidence of

cohabitation arising from causes (mentioned above) other

than the Church/State conflict is a further factor

suggesting the need for a re-appraisal of this branch of the

law.

Recent family legislation in this country has

deliberately refrained from extending to co-habitees rights

and duties which are given to married couples. The

protection afforded to abused spouses and their children

by the barring order introduced by s.22 of the

Main-

tenance of Spouses and Children's Act,

1976, ("Family

Law Act 1976") does not extend to co-habitees nor to their

children. The wide range of rights given to spouses by the

Family Home Protection Act,

1976, does not extend to co-

habitees. The

Succession Act,

1965, affords a surviving co-

habitee no rights of intestate succession to the estate of the

deceased co-habitee, no legalright to a shareofhis/her estate

where a will exists, and noright to apply for provision out of

his/her estate. The considerable improvements in the

maintenance rights of both spouses introduced by the

Family Law Act,

1976, were not extended to co-habitees.

Some social welfare allowances and benefits are only

available on proof of marriage, e.g. deserted wife's and

widow's allowances and benefits, though in this context a

cohabitee may be entitled within some other classification,

e.g. single mother's allowance.

It is of significance that the trend in a number of other

countries has been in the other direction towards

increased protection of co-habitees. The recent English

Court of Appeal decision in

Davis v Johnson

[1976] 2

W.L.R. 182, gave publicity to the provision of the

Dom-

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