Adult Relations - Nullity of Marriage (England and Wales)

Adult Relations - Nullity of Marriage (England and Wales)

1. Void Marriage

   • Declarations as to Marital Status
     • s.55 Family Law Act 1986 - Declarations as to Marital Status
       • (a) Declaration that marriage was void at its inception
         • N.B. no power to apply for such a declaration, proper procedure to seek decree of nullity and court will make orders relating to children and financial relief per Family Law Act 1986 s.58(5)(a)
           • A Local Authority v X and a Child (2013) EWHC 3274 (Fam) [2014] 2 FLR 123
             • Forced marriage, Pakistani girl (>16) domiciled in England, fell pregnant after consummation of marriage
             • Care proceedings commenced, COURT DECIDED because >16 according to Marriage Act 1949 lacked capacity to marry and therefore marriage void
               • However, statutory bar of s.58(5) meant that court would not present decree and therefore refused petition sought by local authority
           • Applications may however be made to the High Court for a declaration that there never was a marriage
       • (b) declaration that marriage subsisted on a date specified in the application
       • (c) Declaration that the marriage did not subsist on a date so specified
       • (d) Declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales
       • (e) Declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales
   • Formal Defects in Marital Ceremony
     • NOT EVERY DEFECT WILL RENDER MARRIAGE VOID
       • Socially desirable concept, evasion of all marriages with minor technical defects would go against public policy
       • Some defects will not render nullity at all, some will be void if both parties contracted to the marriage with knowledge of the default
         • If only one party has knowledge of defect then they commit the criminal act of perjury under s.3 of the Perjury Act 1911
     • Defects that will NEVER invalidate a marriage
       • Marriage Act 1949 s.24 & 48
         • (i) that any statutory residence requirements were not fulfilled
         • (ii) absence of necessary consent concerning the marriage of a minor by common license or superintendent registrar's certificate
         • (iii) that the registered building in which the marriage took place had not been certified as a place of religious worship or was not the parties usual place of worship
         • (iv) incorrect declaration made in order to be permitted to marry in a registered building
     • Defects which MAY invalidate a marriage
       • For Marriages According to CofE rules
         • (i) failure to publish banns correctly or to obtain a common license/certificate
           • (ii) solemnisation in a place other than one where Banns may be published or to which the certificate applied
             • (iii) solemnisation by a person not in Holy Orders
               • (iv) marriage outside time limit after publication of banns/issue of license/entry of notice
                 • (v) marriage of a minor where a person so entitled has dissented
                   • (vi) where same-sex couples have pursued a religious marriage but the religious authority has not given written consent to opt-in and perform such a marriage (parties MUST have done so knowingly and willingly)
   • Lack of Capacity to Marry
     • s.11 Matrimonial Causes Act 1973 - Grounds on which a Marriage is Void
       • (a)(i) - Prohibited Degrees
       • (a)(ii) - either party >16
       • (a)(iii) - intermarriage with disregard to requirements of formation
       • (b) at time of marriage either party was already lawfully married or in CP
       • (d) in case of polygamous marriage entered into outside England and Wales that either party at the time of the marriage was domiciled in England or Wales

2. Voidable Marriage

   • s.12 Matrimonial Causes Act 1973 - Grounds for Voidability
     • (i) incapacity of either party to consumate
       • (ii) wilful refusal of respondent to consumate
         • (iii) No valid consent by either of the parties, by either duress, mistake or unsoundness of mind
           • (iv) though capable of giving consent was suffering from mental disorder within the meaning of the MHA 1983 as to be unfit for marriage
             • (v) suffering from venereal disease at the time of the marriage which was in a communicable form
               • (vi) pregnancy at time of marriage by someone other than the pursuer
                 • (vii) Gender Recognition Certificate issued to either party after the marriage occurs
                   • (viii) Respondent is a person whose gender at time of marriage had become acquired
                     • under Gender Recognition Act 2004
                   • under Gender Recognition Act 2004
         • Not applicable to same-sex couples
       • Not applicable to same-sex couples
     • (iii) - (viii) also applicable to marriages converted from Civil Partnership
       • N.B. as per s.12A Matrimonial Causes Act 1973 (grounds on which a marriage converted from civil partnership will be void or voidable)
         • Marriages resulting from purported conversion of a VOID civil partnership are also VOID (application of s.12(1) (c)-(h)
   • s.13 Matrimonial Causes Act 1973 - Personal Bar
     • ss.(1)(a) no decree granted if petitioner led the respondent to believe that he would not seek to avoid the marriage
       • ss.(1)(b) no decree if it would be unjust to the respondent to grant such a decree
     • ss.(2) - interaction of s.12 and s.13 applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
       • (a) no decree unless satisfied that proceedings were instituted within the period of three years from the date of the marriage
       • (b) leave for institution of proceedings after expiration of such a period granted under ss.(4)
     • ss.(2A) - applicable to paragraph (g) of s.12
       • Time limit of six months from date of issue of interim GRC
     • ss.(3) - applicableto paragraph''s (e) (f) and (h) of s.12
       • petitioner barred from decree unless ignorant of the facts alleged
     • ss.(4) - applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
       • judge may grant leave for institution of proceedings after an expiration period IF
         • he is satisfied that the petitioner has at some time during that period suffered from mental disorder within the meaning of the MHA 1983
         • he considers that in all the circumstances of the case it would be JUST to grant leave for the institution of proceedings
         • an application for leave under ss.(4) may be made after the expiration of the period of three years from the date of the marriage