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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.


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