Nullity

A marriage could be void for:

• Lack of Capacity (S11 MCA 1973)
• Formal Defects - only certain breaches of formalities will render a marriage void.

A marriage will be void in the following situations:

• The parties are married within the prohibited degrees (consanguinity/affinity)

- Prohibited degrees found in S1 Marriage Act 1949.

• Either one of the parties is under 16 (S2 Marriage Act)

- However, the marriage of a person under the age of 16, who is domiciled in a country which permits such marriage, will be recognised as valid in this country. - (See Mohamed v Knott)

• The formalities are defective - (See Gereis v Yacoub)
• One of the parties are already married

- This is supporting the criminal law of bigamy. It is a defence to bigamy if one party reasonably believed that they were widowed. The marriage will still be void. 

Nigerian couple - wife was 13. This was legally recognisable in Nigeria as a valid marriage - they then came to the UK.

The court said that there was nothing wrong with it because it was recognised as valid in the country where they got married. 

The parties married in a Greek Orthodox church. They knew it was not a licensed wedding venue and so the marriage was void as they had "knowfully and wilfully" failed to comply with the legal formalities. 

A marriage which is voidable exists untill a decree of nullity is granted. The important difference between nullity and divorce is that the marriage is voidable because of some defect at the time of the ceremony.

Annulment of a voidable marriage requires the action of one of the parties.

The marriage is valid until a decree is granted - S16

Either party can rely on this ground. A party can rely on their own incapacity to consummate. 

Definition of consummation in Dredge v Dredge = one single act of intercourse after the marriage.

The classic defintion is found in D-E v A-G by Dr Lushington = "intercourse which is ordinary and complete, and not partial and imperfect". 

- There must be full penetration and the husband should be able to gain and maintain an erection. *********** is not necessary.

Incapacity = a defect existing at the time of the ceremony. 

Law has taken a liberal view of the "incurable" - if there is a physical defect that can be cured by operation, but the operation is dangerous/unlikely to be successful, and the spouse refuses then it is deemed to be incurable. (S v S)

Horton v Horton - if you are going to show wilful refusal, you must show that there is a settled and definate decision come to without just excuse"

• Couple were roman catholics who had married during the war. They failed to consummate their marriage at first, and were then seperated. Husband now sought to have the marriage annulled on the basis of W's wilful refusual to consummate. - the petition failed on the facts. a "wilful refusal" is an unjustifed, settled and definite decision and taking into account the whole history of the marriage.

Ford v Ford (showed defintite decision)- Prison wife not getting sex on visits. Husband made excuse that it was because he was in prison. He was then released on home visit and he asked his wife to take him back to his ex-girlfriends house rather than their home. She claims wilful refusal. Court held that he had showed no intention of pursuing a normal maritial relationship.

Kaur v Singh (there is a "just excuse")- Civil ceremony took place with intentions of a religious ceremony. he failed to organise the religious ceremony so the wife refused to consummate the marriage. The courts held that because he had refused to organised a religious ceremony, the wife had good explanation to refuse to consummate - important in religion.

"Lack of consent due to duress, mistake, unsoundness of mind or otherwise"

If someone did not voluntarily consent then the marriage is voidable. Where a person has agreed to marry as a result of fear or threats then a marriage is voidable. 

Szechter v Szechter - held that there must be a reasonably held fear caused by a threat of immediate danger to life, limb or liberty, for which the party himself is not responsible (objective test)

Now the test is subjective - Hirani v Hirani - 16 year old woman living in england became friendly with a muslim that they didnt approve of so they arranged for her to marry a man that she had not seen or met. Marriage was not consummated and she left 6 weeks later. She petitioned for a decree under duress for which her parents (whom she was financially dependent on) forced her to marry him otherwise they would kick her out of the home.The courts held that the crucial question being whether the threats or pressure were such as to overbear the will of the individual and destroy the reality of their consent.

The test for duress is simply "whether the mind of the applicant has in fact been overborne, howsoever that was caused"

About the identity of the person you are marrying, in relation to whether you understood what you were going through. 

• A mistake in identity is enough but not a mistaken belief that the other party has certain attributes.

C v C - A woman married a person she believed to be a famous boxer. He wasnt a famous boxer but the marriage was still held to be valid - she intended to marry the person in front of her.

• If the person is mistaken as to the nature of the ceremony, the marriage will be voidable. 

Mehta v Mehta - The woman thought she was going through a ceremony of religious conversion. Went to the court to ask for a nullity decree because she didnt give her consent. The marriage was held to be voidable.

Estate of Park - the individual here was clinically ill. She had episodes of "temporary hysterical neurosis" - the person was of unsound mind and couldn't give consent. 
The court said this wasnt the case - she may have been temporarily hysteric but she could still have given her consent. 

"or otherwise" - Not enough to just be drunk - you have to prove you didnt have the capacity to consent to the marriage - hard to argue as the priest/registrar would have picked up on the incapacity and would have not continued with the marriage ceremony. 

The marriage will be voidable if at the time of the ceremony either party was suffering from a mental disorder (continuously or intermittently) within the meaning of the Mental Health Act 1983 so that they are deemed "unfit for marriage". 

Bennett v Bennett - "incapable of carrying out the ordinary duties and obligations of marriage". 

This ground is different from the unsoundness of mind ground. This ground includes those who are able to understand the nature of marriage but cannot fulfil the duties of marriage due to mental illness. 

The marriage is voidbale if at the time of the ceremony the respondent was suffering from VD in a communicable form. 

Query as to whether or not this now includes AIDS/HIV?

No cases found - could suggest that if someone was HIV positive, it is serious enough to declare the marriage voidable. 

The husband may petition is at the time of th ceremony the wife was pregnant by another. 

Has been issued to either party AFTER the marriage. 

The respondent has acquired gender at the time of the marriage.

Eg, the born male acquired female gender (Gender Recognition Act 2004) and the husband doesnt know - they have three years to find out and petition in order for this to be a ground to declare the marriage voidable. 

No statutory bars for void marriages - it never existed. 

Three potential bars for 13(1), 13(2), 13(3)

It is for the respondent to make the defence (the person who wants to stop something happening). The person they and taking the action against.

States that the court shall not grant a decree on the ground that the marriage is voidable, if the respondent had satisfied the court that:

a) the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead them to reasonably believe that he would not seek to do so; AND 

• (for example - incapacity to consummate - the respondent could say that the petitioner knew about this, and the conduct was that she was content with it and happy to go ahead with the marriage and therefore she cannot change her mind)

b) that it would be unjust to the respondent to grant that decree. 

• (situations where the court may agree it is unjust: if the respondent is likely to suffer financially and this would be unjust. For example - petition on basis of wilful refusal to consummate. IF it goes ahead, they will lose pension rights and that would be unjust)

D v D - Husband bought nullity petition on the basis of wife's refusal to consummate. However, he had previously agreed to the adoption of a child, which the court found to be sufficient conduct. 

For a decree based on:

• Lack of consent (c)
• Mental disorder (d) 
• VD (e) 
• Pregnancy by another (f) or 
• the respondent's acquired gender (h)

Has to be raised within 3 years.

If at the time of marriage, the person was aware of the STI, or the pregnancy and or the acquired gender, it cannot be raised at a later date.