Marriage Formation and Annulment

What is marriage?

Marriage is, according to the law in England and Wales, the voluntary life-long union of a man and a woman, or two people of the same sex, to the exclusion of all others.  Under the Gender Recognition Act 2004, transsexuals are allowed to marry as their ‘acquired gender’, but only after a gender recognition certificate has been issued to them.

How is a marriage formed?

A marriage is formed when the legal requirements under The Marriage Act 1949 for entering into a marriage have been complied with. These include minimum age requirements, providing documentary evidence of your name, age and nationality, giving required notice of the wedding, requirements for witnesses and entry in the marriage register, and having the ceremony at a place licenced for marriage ceremonies (or a registry office). For more information about the requirements for valid marriage, read here.

What are the consequences of a valid marriage?

On a valid marriage, there are far-reaching benefits and consequences for both parties.  For example, if one spouse dies without having made a will, the surviving spouse is automatically entitled to their assets. They enjoy tax advantages, and automatic joint parental responsibility on the birth of their children. If the parties separate and divorce, the parties have much greater rights to financial remedies and division of the matrimonial assets than unmarried couples.

Void and Voidable Marriages

A marriage that proves not to be valid is either void or voidable.

What is a void marriage?

A void marriage is treated in law as a marriage that never took place, in other words, it never existed.   Under the Matrimonial Causes Act 1973, a marriage is void in specific circumstances, including where:

  • The legal formalities were not complied with
  • The parties are within the prohibited degrees of relationship, eg. they are siblings
  • One or both parties are under 16
  • One of the parties was already lawfully married or in a civil partnership

Where the marriage is void, there is no need for either party to obtain a court order declaring the marriage void, but a third party can apply to the court for an order declaring the marriage void.

Voidable marriages

A voidable marriage is a marriage technically exists, but can be held to be invalid on certain grounds as set out under the 1973 Act:

  • Non-consummation of the marriage, whether because a party is incapable or wilfully refused to consummate the marriage
  • Lack of valid consent to the marriage, whether by reason of duress, mistake, unsoundness of mind or otherwise.  An arranged marriage is not automatically voidable, but a forced marriage may well constitute duress for these purposes
  • One of the parties suffered a mental health disorder at the time of the marriage to the extent they are unfit for marriage
  • The respondent was suffering from venereal disease in a communicable form at the time of the marriage
  • The respondent was pregnant by another person at the time of the marriage, or
  • Certain gender recognition issues

Until a decree of nullity is granted on the application of one of the parties, the marriage remains valid – even on the death of one of the parties. It is important to note that the existence of one or more of these grounds is not always conclusive that the marriage should be annulled. If, for instance, you knew at the time you could have avoided the marriage but chose to proceed anyway, you cannot then have it annulled later.

Usually, an applicant must ask the court for a decree of nullity within three years of the marriage, except in cases of non-consummation, or where leave is given by the court on the basis of the petitioner’s mental illness.

Finally, unlike in a void marriage, you can apply for financial remedies if you petition for a decree of nullity – in the same way as if you were petitioning for a divorce.

Article written by...
Nicola Laver LLB
Nicola Laver LLB

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A non-practising solicitor, Nicola is also a fully qualified journalist. For the past 20 years, she has worked as a legal journalist, editor and author.