Nullity, and how to void a marriage to a fraudster

An Australian woman who was married and divorced by a fraudster without her knowledge, has won her bid this week to have the marriage declared invalid.

The woman, known only by the court-provided pseudonym Ms Chou, only discovered the scam in 2014 whilst supporting her partner’s visa application. Records emerged which showed that a person with an identity matching her own had married a “Mr Tang” in 2000. Ms Chou suspected that a former boyfriend had sold copies of her identification, seeking to make money from immigration fraud to fund his gambling addiction.

"Shocked and distressed", Ms Chou’s application to nullify the marriage was rejected and she was told that the marriage had been dissolved by a divorce granted in 2005.

Ms Chou returned to court to fight to void both the marriage and divorce. This month Justice Stevenson accepted Ms Chou had had no knowledge of any proceedings.

“Accordingly, I find that the purported consent of Ms Chou to the marriage solemnised in 2000 to Mr Tang was obtained by fraud,” she said.

Marriages where both parties have not given their consent are invalid in most legal systems.

In English law, void and voidable marriages can be annulled by a decree of nullity and a marriage is voidable if either party to the marriage did not validly consent to it because of duress, mistake, unsoundness of mind or otherwise.

The elusive Mr Tang, was not the first to have made an invalid marriage under a false identity. Though a mistake as to your partner’s attributes, or as to the effect of the marriage, will not void a marriage, a mistake as to their identity will.

The well-known case of Militante v Ogunwomoju in 1994 saw a woman granted a decree of nullity after it emerged that the man she married was an illegal immigrant who had lied about his identity. After he was discovered and deported, she had her voidable marriage annulled.

In the case of Small v Small in 1923, an ex-army deserter tried to divorce his wife and the King’s Proctor intervened to argue that there could be no divorce because the marriage was void and had never been legally valid from the start. The deserter had lived under an assumed name to avoid recapture so when the banns were called it was under this assumed name. The judge found that the banns had not been validly published because of the fraudulent intent and the marriage was void.

Many have tried to annul their marriage on the bases that their own spouse had defrauded them, rendering their consent invalid. Though void marriages can be annulled on the application of a third party, voidable marriages can only be brought to an end on the application of one of the parties to a marriage.

However, while fraud invalidates a contract, marital disappointment does not make for fraudulence.

Historically and across jurisdictions, in secular and ecclesiastical courts, marriage have been given a special status and set apart from other types of contract. English, Scottish and US courts recognise how inappropriate it would be to apply traditional contract principles to a marriage.

Accusations against a fraudulent partner have historically been put to strict tests.

The spouse’s misrepresentation has to relate to an “essential” aspect of marriage, a test that has been followed in most US states since the 1862 Massachusetts case Reynolds v Reynolds , one of many 19^th century cases where the husband sought a decree of nullity for his “unchaste” wife.

A second rule is outlined an 1893 Scottish judgment Menzies v Menzies, in which Lord Watson intoned that, “error becomes essential whenever it is shown that but for it one of the parties would have declined to contract.”