Nature and Formation of marriage
In English law, marriage is an agreement by which a man and a woman enter into a legal relationship by becoming husband and wife and such relationship imposes mutual rights and duties. Marriage also confers a status, that is, of married persons to whom the law assigns legal capacities or incapacities. Lord Penzance defined marriage in Hyde v Hyde (1866) LR 1 P & D 130, 133 as "the voluntary union for life of one man and one woman to the exclusion of others".
Marriage will involve four conditions:
- It must be voluntary. This means that the parties getting married should consent to such marriage. The Forced Marriage (Civil Protection) Act 2007 makes provision for protecting individuals against being forced to enter into marriage without their free and full consent.
- It must be for life. The parties should intend that the marriage is to last for life when they enter into the marriage. However, this does not mean that a marriage may never come to an end. A marriage can be dissolved through the judicial process of divorce.
- The parties to a marriage should be of different sexes.
- Neither party to the marriage may re-marry as long as their actual union is subsisting, i.e. until divorce is pronounced by the court.
A marriage may be declared null and void to the effect that the marriage will be regarded as not having taken place ab initio. On the other hand, a marriage may be voidable and will subsist until a decree annulling it has been pronounced by a court. The distinction is crucial: if the marriage is void, no valid marriage existed; whereas, if the marriage is voidable, it is valid and recognised at law until it is brought to an end by a decree of nullity.
What is a decree of nullity?
A decree of nullity is a statement to the effect that the marriage in question never existed, i.e. the marriage is and has always been null and void.
Section 11 of the Matrimonial Causes Act 1973 provides the grounds for a void marriage. A marriage will be void if it is within the list of prohibited degrees which includes relationships of consanguinity and affinity. A party who is below 16 years of age may not marry. If a party to the marriage is under 16, the marriage will be void because the party will be held not to have the legal capacity to marry. This rule may not be avoided by a person domiciled in England by marrying in another jurisdiction where marriages with those under 16 are allowed. Furthermore, a marriage will be held to be void where the parties proceeded to marrying each other with the knowledge that there are defective formalities. For example, Anglican marriages may be preceded by the banns which is a public declaration of an intention to marry.
Section 12 of the Matrimonial Causes Act 1973 provides the ground for a voidable marriage. A marriage is voidable if it has not been consummated due to the incapacity of either party to consummate it. Consummation requires sexual intercourse which is ordinary and complete. On the other hand, a marriage will also be voidable where either party to the marriage voluntarily refuses to consummate it. However, a party may not seek a decree of nullity resulting from his own refusal to consummate the marriage. Where either party to the marriage has not consented to it, the marriage may be avoided. There will be no consent where there has been duress, mistake, unsoundness of mind or otherwise. It is worth noting that Section 13 Matrimonial Causes Act 1973 provides certain bars where the marriage is voidable.