Guide to Nullity
Whether or not a marriage is valid is a much overlooked problem. It is only when the validity of a marriage actually comes into question does it become so imperative to determine the status of a marriage.
The law has three distinct classifications for marriages:
a) A marriage which is valid;
b) A marriage which is void or voidable within Section 11 or Section 12 of the Matrimonial Causes Act 1973; and
c) A non-marriage.
If a marriage is void then in the eyes of the law that marriage never existed i.e. is it invalid from the beginning. This occurs when:
a) The parties are within the prohibited degrees of relationship;
b) Either party is under 16;
c) The requirements for the formation of the marriage are disregarded;
d) Either party is already validly married;
e) The parties are not respectively male and female;
f) Where a polygamous marriage outside of England and Wales has been entered into, either party was domiciled in England and Wales at the time of the marriage.
If marriage is voidable then the law views it as potentially invalid, however, until a Decree of Nullity is granted, the marriage exists. Without the Decree of Nullity, the marriage is legal.
This occurs when:
a) The marriage is not consummated either through inability or unwillingness;
b) There was circumstances of duress, mistake or unsoundness of mind resulting in no valid consent;
c) Either party was suffering from a mental disorder as defined under the Mental Health Act 1983 resulting in the party being unfit for marriage;
d) Either party was suffering from a venereal disease in a communicable form;
e) The Respondent was pregnant by a person other than the Petitioner;
f) Either party has been issued with an interim gender recognition certificate under the Gender Recognition Act 2004 after the time of the marriage;
g) The Respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.
A nullity petition is very similar to a divorce petition, though there are a few differences. There is a 12 month ban on a petition for divorce which does not apply to a nullity petition. There is also no mention of the irretrievable breakdown of the marriage in a nullity petition. Furthermore, unlike a divorce petition, a petition for nullity requires oral evidence to be given to an open court on oath in support of the petition. However, the procedure for both is very similar, where a Decree Nisi will be pronounced and upon the expiry of the statutory six week time limit, an application for Decree Absolute can be made.
It is crucial that for a nullity petition to be presented, there generally has to have been an intention to contract a valid marriage, so that the parties believed it to be valid but that there is a factor which renders the marriage invalid. Where a party is aware that in actual fact they are not technically married, then this is a non-marriage.
The difference between a non-marriage and a void marriage is that for the latter the ceremony would ordinarily render the marriage valid, but due to the occurrence of a certain factor (such as either party being under 16), the marriage could never exist. By contrast, the former, is a “default”, not in the status of the parties, but rather in the ceremony itself.
Why does it matter?
It matters because when a marriage is void or voidable, a party is entitled to financial relief. However, if a marriage is a non-marriage, then the parties are not entitled to financial relief following form the marriage. If there are children, a party may apply for financial relief under Schedule 1 of the Children Act 1989 but this is limited (often to the provision of a house for a specified period and to child maintenance) and is not comparable to the relief available under Section 25 of the Matrimonial Causes Act 1973.
In Hudson v Leigh Bodey J held that the factors to be considered for a questionable marriage relating to a non-marriage are:
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 (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and
d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.”
The situation can arise when, for example, a couple contract a religious marriage, believing it to be valid, but fail to comply with local formalities so that the marriage is technically invalid.