Marriage, divorce and decree of nullity
Marriage by definition is the voluntary union for life of a man and a woman, to the exclusion of all others.
Issuing divorce proceedings is the most commonly used way to end a marriage. Another way to terminate such relation is to make an application for annulment. There are two separate ways to obtain a nullity decree and those are on the grounds that the marriage is void or that it is voidable. In comparison with divorce which is available to all marriages, annulment proceedings are available on the pre-condition that the marriage could be established to be void or voidable.
There is a general presumption that the marriage is valid until the contrary is established. Therefore, this needs to be rebutted in establishing the marriage as void or voidable.
A marriage could be void on a number of grounds for example because the parties are closely related to each other in family ties or because one of the parties is lawfully married or has formed a civil partnership with another person prior to the current marriage. All the grounds on which a marriage is void are contained in section 11 of the Matrimonial Causes Act 1973.
In general a marriage is void if it does not comply with the legal requirements for a valid marriage.
The effect of proving a void marriage is that it is regarded as never having taken place at all. Therefore, the marriage is automatically null, although a declaration of nullity is required to legally establish that fact.The purpose of a nullity suit is to place the fact on judgment without the need for a decree or order.
A marriage could be established to be voidable for example due to one of the parties’ incapacity to consummate it or wilful refusal to do so. Further, another example is when a marriage has been entered into without consent or by a party who lacks capacity through for example mental disability. The remainder of the grounds for voidable marriages can be found listed in section 12 of the MCA 1973.
The terminology used in annulment of voidable marriages or civil partnerships provides that a decree of nullity could be granted in respect of marriages while a nullity order could be made where a civil partnership is voidable.
A voidable marriage or civil partnership may be annulled only as respects any time after the decree or order of nullity has been made absolute. Therefore, the union is regarded as valid until a decree of nullity or a nullity order is obtained.
In contrast with void marriages, the voidable marriage or civil partnership is treated as if it had existed up to the time of the nullity.
In general, either party of the marriage may apply for an annulment. However, as an exception a party may not seek a decree of nullity based on his own voluntary refusal to consummate the marriage.
Bar to relief
An additional provision dealing with voidable marriages establishes a bar to granting a decree of nullity if the respondent satisfies the court of two conditions. Firstly, that the petitioner with knowledge that it is was an option to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead him unreasonably to think that he would not seek to terminate the marriage. And secondly that it would be unjust to the respondent for the court to grant the decree or make the order.
Further, the court must not grant a decree or order of nullity where want of consent, mental disorder, pregnancy or, in the case of a marriage, venereal disease is alleged, or where the respondent is a person whose gender at the time of the marriage or civil partnership had becomean acquired gender, unless:
it is satisfied that proceedings were instituted within three years from the date of the marriage or the formation of the civil partnership; or
leave for the institution of proceedings after the expiration of that period has been granted;
The annulment procedure also known as decree of nullity
Decree of nullity can be obtained in respect of both void and voidable marriages.
The provisions dealing with both of those situations are broadly similar. It is a requirement firstly that one or more grounds are established the nature of which determines whether the case is concerned with void or voidable marriage or civil partnership.
If the marriage is voidable a petition same as a petition for divorce is filed at court. However, it specifies that the petition is for a nullity. Furthermore, there the petitioner must state the ground upon which he believes the marriage or civil partnership to be voidable. Once in court the application is processed in the same manner as an ordinary divorce petition.
After a decree of nullity has been issued by the court, there are no further requirements to end the marriage. In contrast, divorce proceedings end a marriage in two stages. A person is firstly required to obtain decree nisi which on subsequent application is followed by the decree absolute.
In further distinction decrees of nullity in respect of void marriages have the purpose of merely confirming that the marriage was never valid.