family law Resources

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Failure of Consent - Insanity

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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.)