Annulment of marriage

An annulment, or a decree of nullity, is a decree obtained from the court confirming that a marriage is not valid. This may be granted on one of two grounds: either that the marriage is void, or that it is voidable.

A void marriage is one which was invalid ab initio and has therefore never, in fact, existed. Section 11 of the Matrimonial Causes Act 1973 sets out the situations in which a marriage will be void, namely:

• That the marriage did not fulfill the requirements of the various Marriage Acts;
• A party was underage;
• The parties being too closely related;
• That one party was already married or in a civil partnership;
• That the marriage is not between a male and a female;
• That one party, where the marriage is polygamous, was domiciled in England and Wales at the time of the marriage.

In contrast to this, a voidable marriage is one which has technically existed, but can be held to be invalid. The declaration of invalidity takes effect from the date of the decree. S.12 of the Matrimonial Causes Act 1973 sets out the grounds upon which a marriage may be voidable:

• Non-consummation (by either party’s incapacity, or by the respondent’s willful refusal);
• Lack of consent (including, but not limited to, duress, mistake or unsoundness of mind);
• That one party was unfit for marriage due to mental illness, even if they had capacity to consent to it;
• That the respondent was suffering from a communicable venereal disease, or was pregnant by a person other than the petitioner; or
• Where there are issues of gender recognition.

However, there are certain bars to making a nullity petition in relation to a voidable marriage. This means that you cannot seek annulment of a voidable marriage if, for example, you were aware that you could avoid the marriage, but your conduct led the other party reasonably to believe that you did not intend to do so.

As with a divorce, you can still apply for the full range of financial remedies under the Matrimonial Causes Act 1973 pursuant to a petition for nullity. However, unlike divorce, there is no requirement to wait for 12 months from the date of the marriage before being able to issue a petition.

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