Voidable marriage: lack of valid consent due to mistake or duress

Annulment of marriage due to lack of consent

A marriage will be voidable if either party did not validly consent to the marriage (whether by mistake, duress, or lack of capacity), meaning that the marriage can be annulled. Before a voidable marriage is annulled, it is considered legally valid. 

There is a general presumption of valid consent, and the burden of proof to lies with the person alleging a lack of consent.

If you believe your marriage is void due to duress or mistake, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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voidable due to Mistake

It is rare for a marriage to be voidable on the basis of mistake, and therefore there is a lack of substantial caselaw on this issue. Mistake may refer to mistaken identity or a mistaken understanding of the nature of the marriage ceremony.

For example, in Mehta v Mehta [1945] 2 All ER 690, a woman domiciled in England underwent what she thought was a ceremony to convert to Hinduism in India. She later realised that she had unknowingly undergone a Hindu wedding ceremony, which had married her to the friend had who accompanied her.

In the case of mistaken identity, a person may be granted a nullity of marriage order if they married someone who was using a false identity, such as in Militante v Ogunwomoju [1993] 2 FCR 335.

voidable due to Duress

For duress to be established and vitiate an otherwise valid marriage, the court must assess whether “the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual”, as per Hirani v Hirani [1982] EWCA Civ 1.

Whether a person was under duress at the time of the marriage is a subjective test, determined on the specific facts of the case.

For example, in the case of X v A [2021] EWFC 118, duress was considered alongside a lack of capacity. Here, an elderly woman, Y, married a younger man, X, without her family’s knowledge. Soon after the marriage, she gifted him half of her home. The court determined that there was a pattern of controlling and coercive behaviour by X against Y, evidenced by findings including:

• That Y had considered X to be her nurse, and X exploited the power that relationship gave him to form a ‘romantic relationship’ with her
• The transfer of property being so close after the wedding indicated it was X’s purpose in marrying Y
• Y had taken out numerous loans at X’s instruction and for his benefit, having never taken out loans before and which resulted in her being in debt to thousands of pounds

Furthermore, Y was later diagnosed with dementia. Her psychiatrist provided evidence that she would have been suffering from the disease at the time of the marriage. The court found that Y did not have capacity to consent to the marriage, nor to the transfer of the half share of her home, as a consequence of duress and unsoundness of mind. The marriage was therefore voidable.

are forced marriages voidable?

Yes, forced marriages are voidable as they are marriages which have been entered into without the ‘free and full’ consent of one or both parties. As such, victims of forced marriage can seek an annulment of their marriage.

Marriages arranged between anyone under the age of 18 will also be considered a forced marriage. However, such marriages will be void rather than voidable on the ground of the minimum age of marriage not being met. This means that the marriage will be legally considered to have never existed, with a decree of nullity simply serving to confirm that the marriage is, and always has been, null and void.