Voidable marriages

What is a voidable marriage?

A voidable marriage is a marriage which is legally valid, but has a defect which means that either party can seek a nullity of marriage order from the court. This is different to a void marriage, which is treated as having never existed in the first place.

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A marriage will be voidable under section 12 of the Matrimonial Causes Act 1973 on the following grounds:

• The marriage has not been consummated owing to the incapacity of either party or the wilful refusal of the respondent (this does not apply to same sex couples)
• Either party did not validly consent to the marriage (whether by mistake or duress, or unsoundness of mind/lack of capacity)
• At the time of the marriage, either party was suffering from a mental disorder
• 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)

However, even if one of these grounds is met, the court will not make a nullity of marriage order if it is satisfied that:

1. The applicant, knowing that they could apply to end the marriage, conducted themselves in a way which led the respondent to reasonably believe that they would not do so; and 
2. It would be unjust to the respondent to make the order.

Time limits to annul a voidable marriage

There is a 3-year time limit from the date of the marriage to bring an application for a nullity of marriage order based on all of the grounds save for non-consummation of the marriage or where an interim gender recognition certificate has been granted (this has its own specific time limit).