What appears to be a ceremony of marriage can either be:
1. A valid marriage
2. A voidable marriage
3. A void marriage
4. A non-marriage, a ceremony of no legal significance
The difference between divorce and nullity: where a marriage is annulled the law recognises that there has been some flaw in the establishment of the marriage, rendering it ineffective. Where there is a divorce the creation of the marriage is considered proper but subsequent events demonstrate that the marriage should be bought to an end.
The difference between a void marriage and a non-marriage: a void marriage is one where, although there may have been some semblance of a marriage, there is in fact a fundamental flaw in the marriage which means that it is not recognised in the law as valid. Distinguish from a non-marriage in which the ceremony that the parties undertook was nothing like a marriage and so is of no legal consequence. With a void marriage the court has the power to make financial orders, redistributing property between the couple. If the ceremony is a non-marriage the court has no power to redistribute property and the couple will be treated as an unmarried couple.
Hudson v Leigh [2009] 3 FCR 401, Bodey J: list of factors indicating a void or non-marriage:
(a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (man, woman, officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understanding and beliefs of those in attendance.
The difference between a void and a voidable marriage: A void marriage is one that has never existed in the eyes of the law. A voidable marriage exists until it has been annulled by the courts; until then it is valid. NB: a child born to parties of a void marriage would be ‘illegitimate’. NB: any person may seek a declaration that the marriage is void, but only the parties to the marriage can apply to annul a voidable marriage.
Grounds on which a marriage is void: set out in the Matrimonial Causes Act 1973 s.11.
(a) that is it not a valid marriage under the provision of the Marriage Acts 1949 to 1986 (that is to say where- (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of 16; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married;
(c) that the parties are not respectively male and female;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
Referring to s.11(c) in which the parties must be male and female, a person can apply for a Gender Recognition Certificate where they wish to legally change gender.
Gender Recognition Act 2004 s.9(1) – “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is female gender, the person’s sex becomes that of a woman).”
Gender Recognition Act 2004 s.2(1) – “(a) has or has had gender dsyphoria, (b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intends to continue to live in the acquired gender until death.”
Grounds on which a marriage is voidable: set out in the Matrimonial Causes Act 1973 s.12.
(a) That the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) That the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
(c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
(e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
(f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner.
When considering lack of consent, this may be due to duress. Hirani v Hirani suggested that the test for duress should be based on the effect of the threat rather than the nature of the threat. In other words, the threats can be of any kind, but it must be shown that ‘the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual.’ P v R (Forced Marriage) followed Hirani and held that severe emotional pressure could be such as to mean that there was no genuine consent to marry.
Approbation: Matrimonial Causes Act 1973 s.13(1) – “The court shall not... grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court- (a) that the petitioner, with the knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and (b) that it would be unjust to the respondent to grant the decree.”
NB: a decree of nullity will normally not succeed unless bought within three years of the date of marriage (unless the petitioner suffered from some mental disorder).
Effects of a decree of nullity: Matrimonial Causes Act 1973 s.16 – “A decree of nullity granted after 31st July 1971 in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.”
Reform of nullity: in 2008 only 200 annulments were granted out of the 331 petitions. The tiny numbers involved have raised the question as to whether we need such complex law on the area. There have been some debates over whether the concept of voidable marriage should be abolished. The Law Commission argued that voidable marriage should be retained as to some couples, it’s very important that annulment end their marriage and not divorce; e.g. for religious reasons.
Forced marriages: defined as where one person forces another to enter into a marriage without their ‘full and free consent’. Article 12 ECHR protects the right to marry; this includes the right not to be forced into a marriage against your will. A marriage of this type can be annulled on the grounds of no consent but forced marriages do not have their own legislation governing validity. In Re B; RB v FB and MA [2008] 2 FLR 1624 Hogg J described forced marriage as ‘abusive’.
It should be emphasised that there are no legal objections to arranged marriage, where the parents of the parties have a choice in who their child marries.
The Forced Marriage (Civil Protection) Act 2007 enables the court to make ‘forced marriage protection orders’ (FMPOs)
(Notes based on the Herring, Family Law text book)
