Marriage: Formation and Dissolution

Marriage

What is a marriage?

Marriage is the voluntary union for life of a man and a woman, to the exclusion of all others. 

Pursuant to the Gender Recognition Act 2004, transsexuals may marry according to their “acquired gender” after a “gender recognition certificate” has been issued (once the certificate is issued, the person’s acquired gender is his or her gender for all purposes).  

Formation of a marriage

The Marriage Act 1949 requires that for a Church of England wedding, there must be the publication of banns, a licence, or the certificate of a superintendant registrar or naval officer.  For other marriages, a certificate of a superintendant registrar is required.

Where can a marriage be solemnised?

A marriage can be solemnised (performed or held) in:

  • A church or chapel of the Church of England
  • A registered non-conformist church or other building
  • Premises approved by the local authority
  • Any place if a special licence is obtained.

Consequences of marriage

If the formal requirements of a marriage are met, there are potentially far-reaching consequences for the parties.  For example, if the marriage ends, the court has extensive powers to redistribute the couple’s property and make maintenance orders.  If a married person dies without a will, his or her spouse will automatically inherit all or most of the estate.   Spouses also have tax advantages that unmarried couples do not have.

“Legal annulment” of a marriage: Void and voidable marriages

Void marriages

A void marriage will be treated in law as a marriage that has never taken place.   There is no need for the husband or wife to obtain a court order declaring the marriage void.   A third party can apply to the court for an order declaring the marriage void.

Pursuant to the Matrimonial Causes Act 1973, a marriage is void if the parties are within the prohibited degrees of relationship (for example, brother and sister), if either party is under 16, or if the parties have intermarried, or if at the time of the marriage, either party was already lawfully married. 

Another ground is that the parties are of the same sex.  Same sex marriages are not lawful.  Parties of the same sex are eligible to register as civil partners.

Voidable marriages

A voidable marriage will be regarded as a valid subsisting marriage until a decree annulling it has been obtained by one of the parties to the marriage.  Only the parties to the marriage can apply to have a voidable marriage annulled; a third party cannot obtain such an order.  After the death of one of the parties, the validity of the marriage cannot be challenged. 

Pursuant to the Matrimonial Causes Act 1973, a marriage can be found voidable for the following reasons:

    The marriage has not been consummated, and one party is incapable of consummating it or wilfully refuses to consummate it  At least one party did not validly consent to the marriage, whether by reason of duress, mistake, unsoundness of mind or otherwise.    Case law has established that an arranged marriage is not automatically voidable, but a forced marriage may constitute duress.  At the time of the marriage, either party (though capable of giving a valid consent) suffered from a 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.  The illness may be intermittent or continuous At the time of the marriage, the respondent was suffering from venereal disease in a communicable form At the time of the marriage the respondent was pregnant by some person other than the petitioner An interim Gender Recognition Certificate under the Gender Recognition Act was issued after the time of the marriage to either party to the marriage.  A court cannot grant a decree of nullity based on the granting of an interim certificate unless the proceedings are instituted within 6 months from the date of issue of the certificate.  The respondent is a person whose gender at the time of the marriage has become the acquired gender under the Gender Recognition Act 2004.

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For more information on:

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  • Except for cases involving non-consummation, the applicant must apply to the court within three years of marriage, unless leave is given because of mental illness suffered by the petitioner.