Mistake
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A mistake as to the identity of the other party is generally sufficient to make a marriage voidable, but a mistake as to his attributes, or as to the effect of the marriage, is not.
C v C [1942] NZLR 356, Callan J (New Zealand)
A woman P met a man R who claimed to be Michael Miller, a well-known boxer. She married him after a short courtship, but subsequently found he was not Miller at all and sought an annulment. Her petition was dismissed: the judge said P was mistaken as to R's attributes rather than his identity. She intended to marry the man R standing beside her, and was mistaken only as to his name and profession.
Re C & D (1979) 35 FLR 340, Bell J (Australia)
H was born a true hermaphrodite, with both male and female sexual organs; s/he was brought up as a boy, and underwent surgery as a young adult to remove the external signs of femininity. He married a woman W, but the marriage was never consummated and after a year W filed for nullity. Granting a declaration of nullity, the judge said W had intended to marry a male and was therefore mistaken as to the identity of her partner; that would be sufficient grounds. (Also, since marriage requires the participation of one man and one woman, H did not have the capacity to enter a valid marriage.)
Militante v Ogunwomoju [1994] Fam Law 17, Judge Owen
A woman P married a man calling himself Richard Ogunwomoju; he was actually an illegal immigrant and this was not his real name. When R was discovered and deported, P sought a decree of nullity, and this was granted. [This first-instance decision has been doubted by commentators: P's mistake was as to the man's attributes - his name and residential status - rather than his identity, and C v C above is thought to represent English as well as New Zealand law on the point.]
Valier v Valier (1925) 133 LT 830, Lord Merrivale P
An Italian P working in England met a woman R who took a fancy to him. She persuaded him to go through a register office wedding: P answered some simple questions in English (in which he was not fluent), signed his name, and gave R a ring which had just been given to him. Only afterwards did P learn that this was a marriage ceremony, and he subsequently sought an annulment. The judge granted his petition: there was evidence that an Italian marriage involves much more formality, and is often preceded by a public betrothal. P's claim that he was mistaken as to the nature of the ceremony could well be true.
Mehta v Mehta [1945] 2 All ER 690, Barnard J
A UK resident W went through a ceremony with H, an Indian, in Bombay. The ceremony was conducted in Hindi, and W thought its purpose was to receive her into the Hindu faith; she learned afterwards that it was also a marriage ceremony. The court granted a decree of nullity: W had not truly given her consent to any such marriage.
Way v Way [1949] 2 All ER 959, Hodson J
An Army officer H married a Russian woman W in the Soviet Union, but the marriage was never consummated and W returned to her own home and career immediately after the ceremony. H petitioned for a decree of nullity, arguing that he had been mistaken as to the effects of the marriage: he had believed that a married couple would have a duty under Soviet law to live together, that he would be allowed to visit W in her home, and/or that W would be allowed to leave the Soviet Union with him. The judge granted a decree on the alternative ground of W's wilful refusal to consummate the marriage, but said there was no authority for granting an annullment on the basis of mistakes such as these. Only a mistake as to the identity of the person with whom the marriage is contracted, or as to the essential nature of the ceremony, is sufficient.
Vervaeke v Smith [1982] 2 All ER 144, HL
A Briton H and a Belgian prostitute W went through a marriage ceremony, the sole purpose of which was to secure British citizenship for W and thereby protect her from deportation. H received £50 and a ticket to South Africa, and the couple never lived together. Some 16 years later, W married M in Italy, and when M died almost immediately afterwards leaving substantial property in England, W claimed the property as M's widow. The House of Lords, affirming the courts below and refusing to recognise a Belgian decree of nullity for the "mock marriage", said W's marriage to H was valid: the parties knew they were marrying, and their motives for doing so (and their understanding of the consequences) were irrelevant. W's "marriage" to M was thus bigamous and void, and she was not entitled to the property.
