What is a decree of nullity?
A legally valid marriage is typically ended by a decree absolute, after one of the spouses issues divorce proceedings. A marriage that is not legally valid can be ‘annulled’ by the court. A decree of nullity is a declaration of the court that the marriage is null and void, ie. that a legal marriage never actually took place.
An individual can apply to court for a decree of nullity to annul the marriage on grounds that the marriage is either void or voidable. It is effectively a pre-condition that the marriage must be void or voidable before a decree of nullity is given. There is a general presumption that a marriage is valid, until it can be established that it is not. Therefore, this presumption must be rebutted for an application for annulment to be successful.
A marriage is void if it does not comply with the legal requirements for a valid marriage. It is as though the ‘marriage’ never existed. A marriage may be void on a number of grounds as set out in section 11 of the Matrimonial Causes Act 1973 (MCA). For example, if the ‘spouses’ are closely related to each other, or because one of the parties was already lawfully married or in a civil partnership with someone else, or one of the parties was under the age of 16 years.
Once one (or more) of the grounds has been established to show that the marriage is void, the marriage is automatically annulled and a decree of nullity confirms this. It is then as though the marriage never took place.
A marriage is voidable if it can be ‘cancelled’ on the application of one of the spouses for a specified reason as set out in section 12 of the MCA. For instance:
- One party may be unable to consummate the marriage, or has refused to do so.
- One of the parties lacked consent.
- One of the parties was unable to consent because, for instance, they lacked mental capacity.
- One of the spouses was forced or tricked into the marriage.
- The female spouse was pregnant at the time of the marriage by another man.
- An interim gender recognition certificate under Gender Recognition Act 2004 has been issued to either party since the marriage took place.
Unlike a void marriage, until a decree of nullity is awarded by the court in the case of a voidable marriage, the marriage is legal and valid. Any children born within a voidable marriage will, therefore, be legitimate.
Note that a spouse cannot apply for annulment on the basis of his or her own refusal to consummate the marriage.
Bar to relief
An applicant for nullity is barred from relief and will not be able to have the marriage annulled if:
- They knew it was an option to have the marriage avoided but conducted themselves in relation to the other party so as to lead them unreasonably to think that they would not seek to terminate the marriage, and
- it would be unjust to the other party for the court to grant the decree or make the order.
In most cases, nullity proceedings must be commenced within three years from the date of the marriage, or after three years with leave of the court. If the application is based on the issue of an interim gender recognition certificate, proceedings must be issued within six months of the issue of that certificate.
A petition for nullity must be presented at court in the same way as a petition for divorce, save for the fact that the petition is for a nullity. The ‘petitioner’ must state the ground upon which they are relying in order to have the marriage annulled. The petition is dealt with in the same way as a divorce petition.