Marriage and Nullity | Family Law Case Notes

These Family Law pages were originally prepared by the Law Department at St. Brendan's Sixth Form College. 
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This Chapter was last updated on 11 December 2000

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According to Lord Penzance in Hyde v Hyde (1866) LR 1 PD 130, concerning the validity of a Mormon marriage, marriage may be defined as "the voluntary union for life of one man and one woman to the exclusion of all others". This is still true today in that marriage must be voluntary, heterosexual and monogamous, and although it is no longer necessarily for life, the law does not recognise any fixed-term contract as creating a valid marriage. Marriage is unlike any other contract, in that its terms are laid down by the state and not by the parties themselves, nor can the parties by themselves agree to its termination.

 

Engagement

It is convenient to say a word about engagement, which in some societies is almost as solemn and carries almost as many responsibilities as marriage itself. This is not generally so in England, where an engagement is no more than an agreement between two parties that they will marry at some (often unspecified) future date. Such an agreement was formerly regarded as a contract between the parties, and breaking off an engagement could lead to an action for "breach of promise", but s.1 of the Law Reform (Miscellaneous Provisions) Act 1970 put an end to such actions by declaring that an agreement to marry is not an enforceable contract.

The same Act clarifies certain aspects of property law in relation to engaged couples. Under s.3(1), a gift from one party to the other may be subject to an (express or implied) condition that it is to be returned if the marriage does not go ahead; if so, the condition applies no matter which party broke off the engagement. Under s.3(2), however, there is a rebuttable presumption that no such condition attaches to an engagement ring. Whether engagement gifts from third parties belong to one or both of the couple is a matter of the donor's intention, though where the donor is much closer to one than to the other, that may be useful evidence.

Section 2 addresses the beneficial interests of engaged couples in property they may have bought or worked on together, allowing the courts to determine such interests as if the couple had been married. The scope of this section is quite limited, however: it covers only those cases where an interest arises under the ordinary law of trusts, and does not give the courts the wide discretion they have in matrimonial cases.

 

 

Capacity to marry

In order to contract a valid marriage, the parties must possess the legal capacity to marry and must comply with certain formalities: a failure in either respect renders the marriage void. Parties have the capacity to marry if and only if they are
  • not within the prohibited degrees of relationship,
  • over 16 years old,
  • not already married, and
  • respectively male and female.

    The prohibited degrees were formerly of two kinds: degrees of consanguinity where the parties were related by blood, and degrees of affinity where they were related by marriage. Either kind of relationship was a bar to marriage under ecclesiastical law (from which much of the modern law of marriage is derived): since a man and his wife "became one flesh" through the sacrament of marriage, it followed that a sister-in-law was as closely related as a natural sister. Modern civil law has largely removed the ban on marriages within degrees of affinity, though there are some restrictions (below) where the former partner through whom the parties are related by marriage is still alive.

    The degrees of consanguinity are meant to discourage incest, which is seen (with little reason) as giving rise to a significantly greater risk of genetically transmitted disease and (probably rightly) as tending to disturb normal family relationships conducive to the proper upbringing of children. The prohibited degrees are defined in s.1 and Sch.1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 and other legislation. A man may not marry his mother or adoptive mother, his daughter or adopted daughter, his grandmother, his granddaughter, his sister or half-sister, his aunt by blood, or his niece by blood; similarly, a woman may not marry her father or adoptive father, her son or adopted son, her grandfather, her grandson, her brother or half-brother, her uncle by blood, or her nephew by blood.

    A man may not marry his stepdaughter, his stepmother, his step-grandmother or his step-granddaughter, nor a woman marry her stepson, her stepfather, her step-grandfather or her step-granddaughter, unless both parties are over 21 and the time of the marriage and the younger was not at any time before the age of 18 "a child of the family" in relation to the older.

    A man may not marry his mother-in-law or his daughter-in-law, nor a woman marry her father-in-law or her son-in-law, unless their former partners are both dead.

    Under ss.10-11 of the Sexual Offences Act 1956, it is an offence for a man to have sexual intercourse with a woman whom he knows to be his graddaughter, daughter, sister (including half-sister) or mother, or for a woman over sixteen to have consensual intercourse with a man whom she knows to be her grandfather, father, brother (including half-brother) or son. Note that knowledge of the relationship is necessary for the criminal offence, but that a marriage within the prohibited degrees (which go considerably wider) is void irrespective of either party's knowledge.

     

    Marriage Act 1949 s.2
    A marriage solemnised between persons either of whom is under sixteen shall be void.

     

    The section is clear and uncompromising: the marriage is void irrespective of either party's knowledge of his or the other's age. This can bear harshly on those born in undeveloped countries or in other circumstances such that they do not know their age with certainty. If it is shown (perhaps years later) that such a person was under sixteen at the time of his marriage, though mistakenly believing himself over that age, the marriage is void ab initio. (Before 1929 there was no minimum age, though the parties had to be capable of consummating the marriage: this ability was presumed at 14 for males and 12 for females, but could be proved by suitable evidence even below that age.)

    If a person is over sixteen but under eighteen, and has not been married before, s.3(1) of the 1949 Act requires the consent to his marriage of each of his parents or other persons having parental responsibility for him. This requirement may be dispensed with by the superintendent registrar if the parent &c is unavailable or incapable of giving consent, or by order of the court, and the court has power to override even an outright refusal. A public objection by such a person when the banns are read nullifies the banns and under s.25(c), if either party is aware of it, makes void any subsequent marriage based on them.

    Under s.28(1)(c), where a person is to be married under a registrar's certificate, a solemn declaration must be made that any necessary consent has been obtained; making a false declaration is a criminal offence under s.3 of the Perjury Act 1911. However, where a civil marriage has been performed apparently in accordance with the standard procedure, s.48(1)(b) of the Marriage Act 1949 provides that no evidence may be given in any proceedings touching the validity of the marriage to prove that any necessary consent was not obtained.

    Where at the time of the marriage either party was already lawfully married to someone else, whether or not they knew it, the marriage is void under s.11(b) of the Matrimonial Causes Act 1973. A married person who marries again also commits the offence of bigamy under s.57 of the Offences Against the Person Act 1861; he has a good defence if his former partner has been missing for seven years during which he has had no reason to believe her still alive, but this does not validate the second marriage. To overcome this problem, s.19 of the 1973 Act allows a person to apply to the court for a decree of dissolution of marriage based on the presumed death of the spouse, where there are reasonable grounds for such a presumption.

     

    R v Allen (1872) LR 1 CCR 367, CCR
    D was charged with bigamy, having married again while his former wife was still alive. He claimed that since his second "marriage" was not legally valid, he had not in law committed the offence as defined. He was convicted and his appeal was dismissed: Parliament could not have intended to create an offence that it was logically impossible to commit, said the court, and the Act clearly referred to a person who goes through a ceremony of marriage.

     

    R v Tolson (1889) LR 23 QBD 168, CCR
    D's husband deserted her; when D made enquiries she was told that he had taken a certain ship to America, which had gone down with all hands. Six years later, believing herself a widow, D married again, and when her first husband reappeared alive and well she was charged with bigamy. Allowing her appeal, the Court said her honest and reasonable belief in circumstances making her act innocent was a good defence.

     

    Talbot v Talbot (1967) 111 SJ 213, Ormrod J
    A woman T, who dressed as a man and called herself John, went through a ceremony of marriage with W. W discovered next day that T was actually female, but continued to live with T for almost a year. Four years later, W sought and was granted a decree of nullity: the judge said this was plainly no marriage.

     

    Harrogate BC v Simpson (1986) 2 FLR 91, CA
    A lesbian D lived with another woman in a permanent relationship as "husband and wife" in a council house. When the tenant died, the Council sought to evict D, who claimed a secure tenancy under the Housing Act 1980 as "a member of the tenant's family". The Act defined a person as being a member of the tenant's family if they lived together as husband and wife, but the Court of Appeal dismissed D's appeal. Watkins LJ said it would be surprising in the extreme if public opinion were such that it would recognise a homosexual union as being akin to a state of living as husband and wife.

     

    Fitzpatrick v Sterling Housing Association (1999) unreported, HL
    Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P's claim on the basis that he had been living "as the husband or wife" of the deceased - if Parliament had intended such a relationship to include same-sex partners it would surely have said so - but P could claim as "a member of the family" living with the deceased at the time of his death.

     

    Some difficulties have arisen in relation to transsexuals: there are thought to be about 1500 male-to-female and about 300 female-to-male transsexuals in the United Kingdom, but so far as the law is concernedthey retain the legal sex into which they were born. A transexual can therefore lawfully marry a person of the sex he/she has now adopted, but not one of his/her birth sex.

     

    Rees v United Kingdom (1986) 9 EHRR 56, ECHR
    A female-to-male transsexual P, who had undergone surgery and changed his name by deed poll, complained that the English law preventing him from marrying a woman was a breach of Articles 8 and 12 of the European Convention on Human Rights, guaranteeing respect for private life and the right to marry. He also complained that his birth certificate still showed him to be female, and that he had been refused a corrected certificate, even though all other official documents (including his passport) showed him to be male. The Court rejected both claims: the birth certificate was a historical document showing the child's sex at birth, and national governments were entitled to make reasonable laws governing the exercise of the right to marry.

     

    Cossey v United Kingdom (1990) 13 EHRR 622, Times 17/10/90, ECHR
    A male-to-female transsexual P claimed that the Registrar's refusal to issue a new birth certificate showing her to be female was an infringement of her right to respect for her private life, and that the impossibility under UK law of her marrying as a woman was a violation of her right to marry. The Court, by majorities of 10-8 and 14-4 respectively, affirmed the decision in Rees and dismissed both claims: there was not yet sufficient uniformity of practice among states to establish a general rule.

     

    B v France (1992) 16 EHRR 1, Times 31/3/92, ECHR
    A male-to-female transsexual B complained of the authorities' refusal to recognise her changed sex. The Court distinguished Rees and Cossey above, and found a violation of B's right to respect for her private life. First, French law as it stood (unlike English law) allowed annotations to be added to a birth certificate, so there was no good reason for refusing such an annotation in B's case. Second, French law prohibited a person from using on official and semi-official documents such as tax returns and cheques any name other than that on the birth certificate, with the result that B had to explain repeatedly why she had a male name. And third, B's INSEE (social security) number clearly identified her as male, requiring further embarrassing explanations when (as often happened) it was quoted as an identity check on documents.

     

    X Y & Z v United Kingdom (or Whittle v UK) (1997) 24 EHRR 143, ECHR
    A female-to-male transsexual X complained that English law refused to register him as father of the children born (by artificial insemination) to his long-term female cohabitant. The European Court of Human Rights unanimously affirmed that "family life" in Art.8 extended to X's situation: factors such as the length of and mutual commitment to a relationship should be taken into account, and on the facts there were clear de facto family ties linking the applicant, his cohabitant and her child. However, there was still no uniformity of practice in relation to transsexuality, and English law was within the wide margin of appreciation to be allowed to member states.

     

    Formalities

    All marriages must be conducted with a certain amount of formality, and all marriages must be registered. This not only emphasises to importance attached to the contract, but enables the parties and others to declare with reasonable certainty whether they are married and, if so, when they became married. This may be important, for example, in the distribution of an estate on intestacy.

    A civil marriage is solemnised on the authority of a superintendent registrar's certificate (with or without a licence) or a Registrar-General's licence: the main difference between these is that by paying a higher fee the waiting period can be reduced. The requirements of these are set out in ss.26-36 of the Marriage Act 1949.

    A superintendent registrar's certificate is the most common. Each party gives notice to the registrar in the area in which he/she has resided for the past seven days, and formally declares that there is no known impediment to the marriage, that any necessary consents have been given, and that the residence conditions have been met. This notice is published in the register office, and if no objection is recorded within 21 days (15 days from January 2001, or less if there are "compelling reasons"), the registrar issues a certificate allowing the marriage to take place in a registered building or other approved premises any time in the next three months.

    A superintendent registrar's certificate with licence is more expensive but reduces the waiting period and requires only one of the parties to give notice. Either party gives notice to the registrar in the district where he/she has resided for the past fifteen days, and the certificate and licence issued after a delay of just one clear day. The requirements are otherwise the same as for the certificate alone. This procedure is abolished with effect from 1 January 2001.

    The Registrar-General's licence is obtained only in exceptional cases, as for example where one party is ill and unable to be moved: it can authorise a marriage in any place.

     

    Small v Small (1923) 67 SJ 277, Duke P
    An army deserter H lived under an assumed name to avoid recapture, and before his marriage he had the banns called in this name. When H sought a decree of divorce on the grounds of W's adultery, the King's Proctor intervened to argue that the marriage was a nullity from the start. The judge said the banns had not been validly published because of the fraudulent intent, so the marriage was void and the decree nisi should be discharged.

     

     

    Legal consequences of marriage

    According to Blackstone, writing in about 1765, the husband and wife were one person in law: the legal existence of the woman was suspended and incorporated into the personality of her husband. She could not make a contract except as her husband's agent, and although she could commit torts her husband remained jointly liable. A husband could not make a legal gift to his wife, nor enter into a contract with her; however, he could leave property to her in his will, because that would not take effect until after the marriage was ended by his death. The husband was responsible for his wife's debts, whether contracted during the marriage or before, and if she committed any crime in his presence it was presumed that she did so under his direction. As late as 1840, Coleridge J in Re Cochrane 8 Dow PC 630 said there could be no doubt that "the husband hath by law power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner".

    The law has changed since then, largely due to the growing recognition that women (included married women) are individuals with minds and rights of their own. Husbands no longer have disciplinary rights over their woves, and husbands and wives are separate legal persons who can make contracts with one another, sue one another, commit crimes against one another, and so on.

     

    R v Jackson [1891] 1 QB 671, CA
    A wife W left her husband H for another man; H kidnapped W as she was leaving church and took her home. Reversing the Divisional Court, the Court of Appeal overruled Cochrane and granted habeas corpus, saying H had no right to detain W against her will. If a husband ever had the legal right to beat his wife, said Lord Halsbury LC obiter, that entitlement was now obsolete.

     

    But the fact of marriage alters the partners' legal status in various ways: they have a duty to support one another financially, for example, and share parental responsibility for their children. Married couples enjoy various tax benefits, particularly in relation to inheritance tax, and only a legal spouse (or the parents of an unmarried minor child) can claim bereavement damages under the Administration of Justice Act 1982. A spouse takes precedence over anyone else in the event of intestacy - a divorced spouse or cohabitant come nowhere in that reckoning - and a spouse has a better claim than others for provision to be made for his or her maintenance out of the estate, though since the Law Reform (Succession) Act 1995 a cohabitant of two years' standing can apply for provision along with a spouse or child.

     

    Rignell v Andrews [1991] 1 FLR 332, Ferris J
    M and W lived together for eleven years and she took his surname. M's claim for a married man's tax allowance was allowed by the Commissioners, but the judge allowed the Inspector's appeal. The statute clearly extended only to formal marriages recognised by the civil law: the so-called "common law wife" has no legal standing.

     

    A husband and wife cannot be convicted of conspiracy with one another alone, and under s.80(3) of the Police and Criminal Evidence Act 1984, the lawful spouse of a defendant in a criminal case cannot be compelled to give evidence for the prosecution unless the charge involves a violent or sexual offence against the spouse or a child, though cohabitants and former spouses are compellable witnesses. The doctrine of coercion survives in a very restricted form, the presumption of coercion in criminal matters having been abolished (subject to contrary proof) by the Criminal Justice Act 1925.

     

    R v Shortland (1995) Times 23/5/95, CA
    A wife D was convicted of making a false statement to procure a passport. Allowing her appeal against conviction, Kennedy LJ said D's defence of coercion should have been put to the jury. This did not necessarily mean physical force, or the threat of force: it would have been enough if D's will had been overborne by that of her husband.

     

    Married couples have an obligation of confidentiality towards one another, and either can be restrained by injunction from revealing to a third party anything learned from the other in the course of married life.

     

    Brodie v Brodie [1917] P 271, Horridge J
    W petitioned for an order for restitution of her conjugal rights (an action no longer available since 1970). In reply, H pled an agreement made before the marriage (which had taken place only because W was already pregnant by H) that the parties would permanently live apart. The judge, granting W the order she sought, said such an agreement was contrary to public policy and could not be a defence.

     

     

     

    Foreign marriages

    The English courts are generally happy to recognise the validity of marriages contracted abroad by those normally resident there, even though other countries' rules governing (sometimes) eligibility and (almost always) formalities are different from those applicable in England.

     

     

     

    Bibi v Chief Adjudication Officer (1997) Times 10/7/97, CA
    P was the first wife of H, a British citizen normally domiciled in the UK. H and P married in Bangladesh in 1966, and in 1969 H married a second wife W2, again in Bangladesh. Both P and W2 remained living in Bangladesh until 1986, when P and her children joined H in the UK. In 1988 H died, and P claimed a widowed mother's allowance under s.25 of the Social Security Act 1975. Her claim was rejected, and the Court of Appeal upheld the refusal. Provision had been made by regulation for the payment of benefit to some survivors of potentially polygamous marriages which were in fact monogamous, said Ward LJ, but where the marriage was actually polygamous none of the "wives" was in law a widow entitled to the benefit in question.

     

     


     

    NULLITY OF MARRIAGES

    The law governing the nullity of supposed marriages is based on the canon law administered before 1873 by the ecclesiastical courts, but is now almost completely codified in the Matrimonial Causes Act 1973. Decrees of nullity are rare nowadays - in 1995 there were barely 500 decrees absolute, compared with more than 150 000 divorces - but the subject is still of some academic interest.

    A marriage may be either void or voidable. If it is voidable, the marriage remains valid until it is formally annulled by an order of the court, and a decree of annulment can be sought only by one (or both) of the parties during the lifetime of both. A void marriage is void ab initio; a decree of nullity can be sought by any person with a legitimate interest and can be pronounced at any time, even after the parties have died. In theory a void marriage is void in itself, irrespective of any decree, but in practice a formal decree is normally sought first for the removal of any doubt and second because the court annulling a marriage has discretion to make certain orders (e.g. for financial support) similar to those available in the event of divorce.

     

     

Gereis v Yagoub [1997] 1 FLR 854, Judge Aglionby

    M and W went through a purported marriage in a Coptic orthodox church. Neither the church nor the priest who conducted the ceremony were licensed for marriages, and no prior notice was given to the superintendent registrar. The priest warned M and W that they would have to have a civil wedding as well, but for some reason they did not do this. When the relationship broke down a year later, W sought a decree of nullity but M argued there had never been even a void marriage that could be annulled. Granting W's application, the judge said the parties had treated their relationship as a marriage - M had claimed a married man's tax allowance, for example - and since it was clearly void there should be a decree of nullity. Obiter, no decree would be needed (and no offence would have been committed by the celebrant) if the ceremony was clearly no more than a "mock marriage", as for instance in a theatrical production.

     

Under s.12 of the 1973 Act, a marriage may be voidable:

 

    • if either party is unable to consummate the marriage, or

       

    • if either party wilfully refuses to consummate the marriage, or

       

    • if either party did not validly consent to the marriage,

       

or if at the time of the marriage

 

    • either party suffered from mental illness, or

       

    • either party suffered from venereal disease (which may or may not include AIDS), or

       

    • the wife was pregnant by a man other than the husband.

 

Non-consummation

Consummation of the marriage, according to Dr Lushington in D v A (1845) 163 ER 1039, requires "ordinary and complete" rather than "partial and imperfect" sexual intercourse, including erection and penetration but not necessarily leading to orgasm. It certainly need not result in conception, and the fact that the husband may be sterile or the woman barren is legally irrelevant.

Either party can seek an annulment on the grounds of incapacity. The incapacity may be physical or psychological, and may not prevent intercourse with anyone other than the spouse, but must be permanent and incurable. The fact that the parties may have had successful intercourse before the marriage is irrelevant if the incapacity existed at the time of the marriage; it is not clear how the law would view a case in which (say) the incapacity was the result of a road accident between the church and the honeymoon hotel.

 

     
    Potter v Potter (1975) 5 Fam Law 161, CA
    H and W married, and found W was physically unable to consummate the marriage. W underwent surgery and they tried again, but were prevented by W's emotional state. H then declined to try further and W petitioned for annulment on the grounds of H's wilful refusal. The judge dismissed the petition and W's appeal also failed: H's refusal was the result of his loss of sexual ardour rather than a deliberate decision.

     

    Ford v Ford [1987] Fam Law 232, Judge Goodman
    H and W had a sexual relationship until H was sent to prison. They married while he was in prison, but he refused to consummate the marriage at the time and later said he did not want to live with W even after he was released. W's petition for a decree of nullity was allowed: H's refusal to consummate the marriage in prison was not a "wilful refusal", but his clear determination never to do so was sufficient.

     

Where the parties jointly regard some other act (usually a religious ceremony) as necessary before consummation, refusal to participate in this other act will be regarded as refusal to consummate.

 

     
    A v J (Nullity) [1989] 1 FLR 110, Anthony Lincoln J
    H and W were of Indian ancestry and took part in an arranged civil marriage, which was to be followed by a religious ceremony some four months later. Between the two ceremonies they spent only a few days together because of H's work in the USA. Shortly before the religious ceremony (which it was accepted was a prerequisite to consummation), W refused to go ahead with it, giving as her reason H's apparently uncaring and unloving attitude towards her. H apologised and said he had supposed a formal relationship would be appropriate until they were "properly married", but W refused to accept this apology and maintained her refusal to go through with the religious ceremony. H was granted a decree of nullity for W's wilful refusal to consummate the marriage.

     

Failure of consent - insanity

The formalities of marriage involve declarations of consent by both parties, and (even if the officiant were to go ahead) in the absence of such declarations the marriage is void. Apparent consent may not be real consent, however, if it is the result of insanity, duress (which does not necessarily have the same meaning as in criminal law or contract) or a mistake as to the identity of the other or the nature of the ceremony.

 

    Durham v Durham (1885) 10 PD 80, Hannen P
    The Earl of Durham sought a decree of nullity, and claimed his wife had not had the mental capacity needed for marriage. The judge said the contract of marriage is a very simple one, which does not require a high degree of intelligence to comprehend. But a person who understands the language of the ceremony may still be affected by delusions or other insanity so as to have no real appreciation of its significance. (On the facts, P's petition was dismissed: the judge decided R had had sufficient capacity at the time of the marriage, though her condition had deteriorated later.)

     

     

Duress

A marriage is voidable at the instance of a party who has entered into it under duress. This does not necessarily have the same meaning as in criminal law, though the decisions do not make it entirely clear just how much pressure is required.

 

    Scott v Sebright (1886) LR 12 PD 21, Butt J
    A woman W sought a decree of nullity because of fraud and duress. H had tricked her into taking over his debts, had then refused to help her unless she married him, and once he had her in the register office (again by a trick) had threatened to shoot her if she did not go through with the ceremony. H and W separated immediately after the marriage, which was never consummated. The judge granted a decree of nullity: W had not given the genuine consent the law required.

     

    Lee v Lee (1928) 3 SW 2d 672, Supreme Court (Arkansas)
    W was pregnant by M. Having established M's identity, W's father went to M with his rifle and told him he would "have to give the baby a name". M and W then married, and M subsequently sought to have the marriage declared void on grounds of duress. His petition succeeded even though W had been unaware of what her father had done; this was still duress, said the judge, and if there had not been a wedding there would probably have been a funeral.

     

    Singh v Kaur [1981] Fam Law 152, CA
    A Sikh P sought annulment of his marriage on grounds of duress. The marriage, when he was 21, had been arranged by his parents; P had protested strongly, but had been told that refusal would lead to disgrace for his family and that he would have to leave the family home and give up his place in the family business. The Court of Appeal affirmed the judge's refusal to grant a decree of nullity: they were bound by Singh v Singh, they said, and there had been no threats to P's life, limb or liberty.

     

    Hirani v Hirani (1982) 4 FLR 232, CA
    A Hindu woman W, living with her parents, went through a marriage arranged by her parents, but the marriage was never consummated and she left her husband after six weeks. W sought a decree of nullity on the grounds of her parents' duress, but initially failed because there was no evidence of any threat to her life, limb or liberty. The Court of Appeal granted the decree: W's parents had threatened to throw her out of the house if she refused to marry the man they had chosen, and this threat (coupled with other pressure) was enough to destroy the reality of W's consent.

     

    Mahmood v Mahmood [1993] SLT 589, Lord Sutherland (Scotland)
    A Pakistani wife W petitioned for the annulment of an arranged marriage. She said her parents had threatened to disown her, cut off all her financial support, and send her back to Pakistan if she did not go through with the marriage, and had already disowned her elder sister. In preliminary proceedings, the judge said there was a case to go for trial: the alleged threats were such as might go beyond the limits of proper parental influence, and could overwhelm the will of a young woman of W's age (21) and cultural background. But obiter, the consent required for marriage need not be enthusiastic consent: reluctant consent is enough as long as it is genuine.

     

    Mahmud v Mahmud [1994] SLT 599, Lord Prosser (Scotland)
    A Pakistani Muslim H sought the annulment of his arranged marriage to a cousin in Pakistan, whom he had seen only at the ceremony and never before or since. H's family had made him feel he was bringing shame on them by his refusal, and after twelve years he had finally given in. Granting the order sought, the judge said parents are entitled to apply pressure to persuade their children to do what the parents think is right for them, but a marriage is invalid if there is not a genuine change of mind. In the instant case, the pressure had been so great as to amount to force, with the result that H's own will was overborne and his consent vitiated.

     

Mistake

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.
     
     

     

Bars to a decree

Where a marriage is voidable (as opposed to void ab initio), the court will refuse a decree of nullity if one of three "bars" exists.

A petition is barred by s.13(1) of the Matrimonial Causes Act 1973 if the respondent can show that the petitioner, knowing the marriage to be voidable, behaved in such a way as to make the respondent think he would not petition for an annulment, and that it would now be unjust to the respondent to grant the annulment sought.

A petition based on lack of consent, mental illness, venereal disease, or W's pregnancy by another man is barred by s.13(2) if brought more than three years after the marriage, subject to the court's discretion to extend this period where the petitioner has been under a mental disability during that time.

A petition based on venereal disease or W's pregnancy by another man is barred by s.13(3) unless the petitioner can show that he was ignorant of the relevant facts at the time of the marriage.

 

     

Effects of nullity

The former rule was that annulment made things as if the marriage had never existed: this could have unexpected (and perhaps undesired) consequences in relation to legitimacy, inheritance, and so on. The rule still applies in most respects to supposed marriages declared void ab initio, but under the Family Law Reform Act 1987 the children of a void marriage are "treated as" legitimate if at the probable time of their conception (or of the "marriage", if later) both parties believed they were legally married. Under s.16 of the Matrimonial Causes Act 1973, however, a merely voidable marriage that has been annulled is now to be treated as though it had existed up to the date of the decree.

 

     
    Ward v Secretary of State [1990] 1 FLR 119, DC
    P was the widow of an army officer, in receipt of a widow's pension. She married another man M, but he was mentally disturbed and violent towards her, and she subsequently obtained an annulment on grounds of non-consummation. When her pension was stopped, she brought an unsuccessful action to have it restored: Brown P said annulment did not cancel the marriage altogether: since her remarriage, P could not longer be regarded in law as the officer's widow and so was no longer entitled to the pension.

     

    Re Spence [1990] 2 FLR 278, CA
    W married H in 1895, but the marriage was unhappy and she left him. W then moved in with S and had two sons by him; in 1934 W and S went through a ceremony of marriage, but since H was still alive and W's first marriage had never been formally dissolved, this "marriage" was void. On H's death his sons sought to inherit, claiming they had been legitimised by the marriage, but the court said legitimation could come only through a valid marriage. Although children born into a marriage subsequently declared void are to be regarded as legitimate, a void marriage could not bring about any change in the status of those born illegitimate.

     

Under ss.21-31 of the Matrimonial Causes Act 1973 as amended, the court granting a decree of nullity has the same powers to make financial provision and property adjustment orders as in the event of divorce. These powers are discussed more fully in a later chapter.

 

    Whiston v Whiston [1995] Fam 198, CA
    A man P obtained a decree of nullity on the grounds of R's bigamy; granting the decree, the judge awarded R ancillary relief amounting to �20 000. The Court of Appeal affirmed the decree but quashed the financial award. Bigamy is a crime, they said, and the court as a matter of public policy should not entertain claims for financial relief from a knowing bigamist.

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