Non-Marriages, Void Marriages and Voidable Marriages
Difference between divorce and nullity:
Annulled – law recognises there was some flaw in the establishment of the marriage, rendering the marriage ineffective.
Divorce – creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be brought to an end.
Difference between a non-marriage and void marriage
Void – fundamental flaw in the marriage which means that it is not recognised in the law as valid. Court has power to make financial orders, redistributing property between couple.
Non marriage – the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. Here court has no financial power.
Geretis v Yagoub 1997 – Couple went thru a purported marriage at a Coptic Orthodox Church without going thru the legal formalities. They cohabited but broke down. Was this marriage void or non marriage? HELD void marriage:
i) Ceremony had hallmarks of an ordinary Christian marriage
ii) The parties considered themselves to be married (only had sex after service)
iii) Claimed married tax allowance;
He therefore decided that the parties had wilfully intermarried in disregard of the formalities under the Marriage Act 1949, which could be contrasted with a couple pretend to marry as part of a [play or a charade which is a non marriage.
Void marriage – court has power to make
It has been suggested that Aglionby J’s test (above) discriminates against ethnic minorities whose marriage ceremonies may not ‘bear the hallmarks of a Christian marriage’. A better test may be whether a reasonable observer would believe they were witnessing an effective marriage.
Difference between a void and voidable marriage
A void marriage will never have been considered by the court to have existed, whereas a voidable marriage exists until it is annulled. This distinction has a number of significant consequences:
i) A child born to parties of a void marriage is technically illegitimate unless at the time of conception either parent reasonably believed that they were validly married to other parent. Strangely, there are still a few consequences that depend on whether a child is legitimate or not.
ii) A void marriage is void even if never declared so by a court, although a voidable marriage is valid from date of ceremony till the court makes an order. A party who believes their marriage to be void would normally seek a court order to perform this to be so.
iii) Any person may seek a declaration that the marriage is void, but only the parties to the marriage may apply to annul a voidable marriage.
Grounds on which a marriage is void
Matrimonial Causes Act 1973, s 11:
(a) that it is not a valid marriage under the provisions of the Marriages Act 1949 – 1986 (that is to say where-
i) the parties are within the prohibited degrees of relationship:
ii) either party is under the age of 16; or
iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of marriage either party was already lawfully married:
(c) that the parties are not respectively male or female;
in the case of a polygamous marriage
entered into outside
1. Prohibited Degrees
Consanguinity – marriage between: parent/child; grandparent/grandchild; brother/sister; uncle/niece; aunt/nephew; and half blood is not permitted.
Affinity – restrictions are based on ‘unity of husband & wife i.e. h&w become 1.
(a) Marrying a step-child. A parent may the child of a former spouse if:
i) Both parties are over 21; and
ii) The younger party was not child of the family in relation to the other while under age of 18.
Effect – if a step parent acts in a parental role towards a stepchild the two can never marry.
(b) Marrying a parent-in-law. A person (x) can only marry his former spouse’s parent (y) if:
i) X & Y are over age of 21; and
ii) The marriage is solemnised after both X&Y’ spouses have died.
Adoption – the restrictions on marriage apply as above. Adopted child & parent are within the prohibited degrees of relationship. An adopted child may marry other relations that arise thru adoption; a man may marry the daughter of his adopted parents.
Led to Marriage Act 1995 increasing number of places to marry
Ss 25-49 MA 1995 state that a marriage is only void for breaching the formalities if the parties marry knowingly and wilfully in breach of the requirements.
If at the time of the ceremony either party is already married to someone else, the marriage will be void. The marriage will remain void even if the 1st spouse dies during the second marriage. If a person is married and wishes to marry someone else he must obtain a decree of divorce or wait until the death of his spouse.
5. Parties must be respectively male and female
Void if same sex.
Biological characteristics of 1 sex, but psychologically feel they belong to the other sex. Presently a TS can apply to amend a passport/ NI number, but cannot change birth certificate (document used to determine sex for the purpose of marriage).
Corbett v Corbett 1971 – Ormerod J – For the purposes of law an individual’s sex is fixed at birth. A underwent sex change op but was still a man and so couldn’t enter into marriage with another man. For purposes of marriage he retained the sex he was born as determined by chromosomal, gonadal and genital factors. People who had undergone a sex op where not able to engage in ‘full natural sexual intercourse’. The decision represents the law although it has been strongly criticised.
Full natural sexual intercourse – why impossible? Goes against decision in Sy v Sy 1963 where a woman with artificial vagina was held to be able to partake in natural SI.
The inability to engage in SI is a ground for marriage being voidable but not void as in Corbett.
Is heterosexual SI essential for marriage?
Reflects the law’s obsession with categorising people.
However, it does offer certainty, determining sex by fixed birth certificate.
Corbett under in attack in subsequent cases
Challenged by ref to ECHR & fundamental Freedoms:
Right to marry
Goodwin v UK 2002 & I v UK 2002 have accepted the refusal of UK to permit post-operative male to female TS to marry interfered with her rights under Art 12. Looking at the medial evidence the courts held that the Corbett decision/criteria could no longer be regarded as decisive in determining someone’s sex. However, the EC restricted their ruling to TS who have undergone the op. TS without op cannot rely on above cases.
Bellinger v Bellinger 2003 HL – It was argued that under s3 HRA 1998 the words male and female in s11(c) of Matrimonial Causes Act 1973 had to be interpreted in order to include post op TS. HL disagreed claming this was stretching the words too far.
Issue involved a ‘major change in the law’ calling for extensive enquiry and the widest public consultation and discussion.
Their Lordships issued a declaration that s11(c) was incompatible with Art 8 & 12 ECHR.
The gov responded with a consultation paper & gender identity bill. Under the proposals an individual can apply for a gender Recognition Panel. It is not required that an individual undergo any form of surgery unless the panel so requires.
b) Intersex people
Sex is analogous at birth – doctors will select a sex for the child.
W v W 2000 – Charles J Held that if a person was born with analogous genitalia the individual was to be determined by considering
i) Chromosomal factors
ii) Gonodal factors
iii) Genital factors
iv) Hormonal factors
v) Psychological factors
vi) Secondary sexual factors
Charles accepted that a decision as to someone’s sex could be made at the time of the marriage taking these factors into account. Commentators take the view that the position of intersexual people reveals there is no hard & fast rule.
c) Same sex marriages
Cannot marry. Is law acceptable? They would the state with the same benefits that a heterosexual couple would. Many see the crucial issue as not being able to have children = sexual discrimination. But some hetero couiples cannot conceive.
Grant v SW Trains 1998 & ECHR in X,Y,Z v UK 1997 – that the bar on gay marriage does not amount to sexual discrimination. Whether I am a man or woman I couldn’t marry same sex – law position stays same.
More productive to argue – claim the law is discriminatory on the grounds of sexual orientation.
Da Silva Mouta v Portugal 2001 – ECHR held that discrimination on the grounds of sexual orientation could amount to discrimination in breach of Art 14 of the ECHR.
i) Art 12 only permits opposite sex couples to marry and so the bar on same sex couiples does not infringe Art 12.
ii) Objective and reasonable justification for discrimination
Grounds on Which a Marriage is Voidable
Matrimonial Causes Act 1973 s12
marriage celebrated after 31st July 1971 shall be voidable on the following
grounds only, that is to say--
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of [the Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage;
(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner.
i) Inability or wilful refusal to consummate
Based on theological grounds that SI united the 2 spouses in a spiritual union and was therefore necessary to complete the sacrament of marriage.
In order for marriage to be consummated there need only be one act of consummation but the act must take place after the solemnisation of marriage.
P v P 1964 – husband had sex 8 times in 18 years. The marriage wasn’t voidable and divorce was only way to end marriage.
2 grounds of voidability:
Wilful refusal by a spouse to consummate the marriage
Incapacity of either party to consummate marriage.
Applicant for the nullity application can rely on his or her own inability to consummate but not on his or her own wilful refusal.
Consummation? = defined as an act of SI, vagina – penetration – penis
Baxter v Baxter 1948 HL – Consummation took place even though the man was wearing a condom. There have been cases where a pregnancy resulted from a sexual act but the court decided there was no consummation because there was no penetration. Requirement is not explained by the state’s interest in the potential production of children.
Inability to Consummate - inability cannot be cured by surgery and is permanent.
Inability can either be physiological or psychological and includes ‘invincible repugnance’ - where one party is unable to have sex due to paralysis of the will.
Debate as to whether the incapacity to consummate marriage has to exist at the time of marriage.
Canon Law impotence could only be relied upon if the incompetence existed at time of marriage.
Matrimonial Causes Act makes no ref to the inability existing at time of marriage in relation to the other grounds of voidability.
Submitted that there is a strong case that the inability can occur at any time before or during the marriage as long as the union has not yet been consummated.
Willful Refusal to Consummate
Requires a ‘settled and definite decision not to consummate without wilful excuse’. ‘Unswerving determination’ not to consummate.
Kaur v Singh 1972 – Couple agreed they would be legally married and then undergo a religious ceremony and only after that would the marriage be consummated. Couple were legally married but man refused to undergo the ceremony, although he was willing to consummate the marriage. Wife was unwilling to consummate unless the religious ceremony was performed. Granted a nullity decree on the basis of a wilful refusal to consummate.
ii) Lack of consent
MCA – 4 circumstances: duress; mistake; unsoundness of mind; or otherwise
Harani v Harani 1982 – test for duress should focus on the effect of the threat rather than the nature of the threat. ‘The threat means pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual’. Woman threatened with ostracism by her community if no marriage.
Singh v Singh 1971 – couple had not met before the marriage and wife agreed to marry out of respect for her parents. Wife entered out of duty + fear = lack of consent.
Fear must be reasonably held
Szechter v Szechter 1971 – suggested duress could only be relied upon if reasonably held.
Scott v Selbright 1886 – as long as he the belief of threats were honestly held, duress could be relied upon.
Is threat reasonably made?
Buckland v Buckland 1968 – a man was alleged to have made a young woman pregnant while
Threat must emanate from 3rd party
Decree of Nullity
s16 MCA Effect of
decree of nullity in case of voidable marriage
A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to 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.
A child of a void marriage is legitimate due to s 1(1) Legitimacy act 1976 as long as at time of marriage either or both parties reasonably believed that the marriage was valid.
SS 23 7 24 MCA 1973 on granting decree of nullity the court has the power to make ancillary relief orders to the same extent as if a divorce order was being made.
Whiston v Whiston 1995 – if the marriage is void on ground of bigamy then the court might decide that the applicant’s conduct was such that the court could not award her ancillary relief.
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