Voidable marriages: venereal disease, pregnancy by another person, and gender recognition

There are a number of grounds in which a marriage will be voidable, meaning that it is legally valid but there are grounds for either party to seek an annulment. The marriage will then cease to be legally valid once a decree of nullity is obtained. 

In this guide, we will cover the law regarding voidable marriages on the following grounds:

• At the time of the marriage, the respondent was suffering from a communicable venereal disease (and the applicant was unaware)
• At the time of the marriage, the respondent was pregnant by another person (and the applicant was unaware)
• An interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage
• The respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004 (and the applicant was unaware)

What is an annulment?

An annulment, or ‘nullity’, is an alternative way to end a marrige or civil partnership and is different to divorce or civil partnership dissolution. A divorce ends a marriage which is legally valid, whereas an annulment ends a marriage by recognising it as null and void. 

You can only get an annulment for a void or voidable marriage. In the case of void marriages, a decree of nullity simply serves as a confirmation that the marriage is void, as void marriages are considered to have never legally existed.

In contrast, voidable marriages are legally valid until a decree of nullity is obtained. This is because voidable marriages are not automatically invalid, but has some element which means that it can be annulled and made void.

If you think your marriage may be voidable and would like to learn about your legal options, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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Venereal disease

A marriage may be voidable if one party had a sexually transmitted disease at the time of the marriage, which the other party was unaware of. For example, in C v C [1962] 1 WLUK 100, a husband was granted a decree of nullity following the court’s finding that his wife had been suffering from syphilis at the time of the marriage.

Pregnant with another person’s child

A marriage may be voidable if one of the parties is pregnant with a third party’s child at the time of the marriage, without their spouse’s knowledge.

Previously, statute required not only that the applicant spouse was unaware that their spouse was pregnant with a third party’s child at the time of the marriage but also that marital intercourse with the consent of the applicant had not taken place since the discovery by the applicant of the existence of the grounds for a decree. So, in Stocker v Stocker [1966] 1 WLR 190, a husband was granted a decree of nullity due to his wife being pregnant with another man’s child when they married. Following this realisation, the parties stopped engaging in sexual relations. In contrast, a husband in similar circumstances was refused a decree of nullity in Watts v Watts [1968] 1 WLUK 552, as the parties continued to live together and have sexual relations for several months following the discovery of the wife’s pregnancy by another man. However, this additional requirement does not exist in the current s.13 of the Matrimonial Causes Act 1973.

Gender recognition

The final grounds on which a marriage can be voidable are related to gender recognition and were inserted by the Gender Recognition Act 2004. This Act provides a process by which a person can receive legal recognition of their acquired gender. Once legal recognition is granted, applicants will be issued with a Gender Recognition Certificate (GRC) confirming this.

Parties can obtain gender recognition without having to end their marriage; however, the consent of their spouse will be required.  If your spouse does not give their consent or wish to stay married, the marriage will be voidable, and an annulment or divorce must be sought before a GRC can be granted.

To apply for an annulment, an interim GRC must be issued subsequent to the marriage or civil partnership. An interim GRC is only valid for 6 months, and so the application must be made during this time frame.

Furthermore, a marriage will be voidable if either party had obtained a GRC prior to the marriage, without their spouse’s knowledge. In these circumstances, the spouse must apply for an annulment within 3 years of the date of marriage or civil partnership (although it may be possible to obtain the leave of the court to institute proceedings out of time in certain limited circumstances).

Case study: P v P (Transgender Applicant for Decree of Nullity: Human Rights) [2024] EWHC 1197

The case of P v P (Transgender Applicant for Decree of Nullity: Human Rights) concerned the marriage between a transgender man, AP, and his wife, JP. The parties married in 2009, but AP had not obtained a Gender Recognition Certificate (GRC), meaning that he was still legally considered female. As same-sex marriage was not yet legally recognised and both parties were legally female, the marriage was void at its inception.

Same-sex marriage was legalised in 2014 through the Marriage (Same Sex Couples) Act 2013, but it did not have retrospective effect. Therefore, same-sex marriages prior to the Act were still legally void. However, following the legalisation of same sex marriage, the Matrimonial Causes Act (MCA)1973 was amended so that a decree of nullity could no longer be obtained on the ground that the parties were of the same sex.

In 2017, AP discovered that his marital status was not legally recognised upon contacting the Department for Work and Pensions about his pension entitlement. AP subsequently sought a declaration that the marriage was valid, which was refused.

In this judgment, AP sought a decree of nullity in relation to the marriage. He had lawfully remarried JP earlier that year, without a decree of nullity. This is because a decree of nullity is declaratory only – it does not change the legal status of the parties.

The court held that a decree of nullity could not be provided, due to the amendment made by the MCA 1973. Furthermore, AP’s claim that his inability to obtain a decree of nullity contravened his human rights was rejected. AP and his wife has since legally married and they therefore had all the rights available under Pt.II of the 1973 Act.