Nullity Flashcards
What is Nullity
Unlike divorce which terminates a valid marriage, a decree of nullity declares that a marriage is null and void such that the couple are viewed as never having been legally married to each other.
Nullity centres on the conduct of one or both of the parties at the time of the marriage in contrast to divorce which concerns the post- marriage relationship.
A decree of nullity leaves the parties in the position to marry again.
Section 36(7) of the Family Law Act 1995
provides that where a marriage has been legally annulled under the law of the State, or where a foreign annulment is recognised, either of the parties may apply to the Court within three years of the date of the annulment for determination of any question arising between them as to the title to or possession of any property.
Guardianship following anullment
As regards the children of an annulled marriage, the fathers of these children remain their guardians under s 2 of the Guardianship of Infants Act 1964 (as amended by the Children Act 1997) provided:
- that the father and the mother contracted a voidable marriage and the child was either;
- born before the decree was granted or
- within ten months after the decree was granted.
In respect of void marriages, the 1964 Act provides that where a void marriage is celebrated which the father reasonably believed resulted in a valid marriage, such father will be regarded as a guardian where the ceremony occurred before the birth of the infant, or at some time during the period of ten months before that birth, or where the ceremony occurred after the birth of the infant and the father reasonably believed that the marriage was a valid one at the time of the ceremony.
section 2 of 1964 act
Section 39 of the 1995 Act provides that the court may grant a decree of nullity only if one of the following conditions is satisfied:
(a) Either of the spouses concerned was domiciled in the State on the date of the institution of the proceedings concerned;
(b) Either of the spouses was ordinarily resident in the State throughout the period of one year ending on that date; and
(c) Either of the spouses died before that date and
(i) was at the time of
death domiciled in
the State, or
(ii) had been ordinarily resident in the State throughout the period of one year ending on that date.
Burden of Proof
The law presumes that a marriage is valid which leaves the petitioner for a decree of nullity with the onus of proof to establish on the balance of probabilities that the marriage is invalid.
De Renville’s case [1948] 1 All ER 56:
Distinction of Void and Voidable:
A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is an issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; a voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.
D v. C [1984] ILRM 173 void and voidable
“In essence, a voidable marriage is one where only the parties have an interest, and a void marriage is one in which society has an interest and “which rests on grounds of public policy.”
How a marriage may be void (3 aspects)
- non-observance of formalities;
- lack of capacity;
- lack of valid consent.
C v. M [1997]
he petitioner, seeking an order of nullity, alleged that he had married because of undue influence and/or duress exerted upon him by the respondent by reason of her pregnancy. He also argued that the respondent was under 21 years of age, and that consent was required under s 19(1) of the Marriages (Ireland) Act 1844. The marriage had been solemnised with forged consent purporting to be the consent of the father. The petitioner argued that this forged consent vitiated the marriage in that he had married in the absence of proper consent. The High Court refused to hold the marriage as invalid on the following basis:
(i) There was not such parental or external pressure exerted on one or both parties such that they were prevented from forming an independent, mature decision of their own.
(ii) That s 19 was directory only and the mere absence of consent could not invalidate the marriage.
iii) That the fact that the consent was forged did not render the marriage invalid under s 19. That section being directory only, it could not be read into it that it was not directory in the case of a forged consent.
(iv) That the petitioner had failed to establish, independently of s 19, that forged consent rendered the marriage voidable. The consent could not have effect where both parties were aware of the forgery. Even if both parties has not been so aware, the petitioner would have to establish that to the knowledge of the respondent he had relied on the consent in entering into the marriage and would not have entered into it had he known of the forgery.
Family Law Act 1995 s 32
An important formality is provided for in the 1995 Act which requires the parties to give at least three months’ notice in writing to the Registrar of Marriages of an intention to marry unless a judicial exemption has been obtained.
Lack of Capacity
- Either party is validly married to another person;
- The marriage is between parties who are within the prohibited degrees of
relationship; - Either party is under eighteen years of age (-). (The Domestic Violence Act
2018 -repealed s 33 of the Family Law Act, 1995. Marriages entered into in reliance on exemptions granted under s 33 prior to the coming into operation of the legislation or where an application -was made but not determined at the time of the coming into operation of the legislation -were not to be affected.)
English case:
Park v. Park [1953] 2 All ER 1411: Mental incapacity
Was the person capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage.
What statute governs capacity to consent
The Assisted Decision-Making (Capacity) Act 2015 repealed the Lunatics 1811 Act.
E v. E [1987] IR 147
The petitioner and respondent (a Catholic priest ordained in 1979) met at a time when the respondent had experienced a series of depressing and unsettling events. He was advised by friends and colleagues to postpone any decision to marry. Despite this advice, the parties married in August 1982 and in February 1983, the respondent was diagnosed as suffering from paranoid schizophrenia.
A consultant psychiatrist gave evidence that the condition had probably existed at the date of the marriage. The respondent had not sought laicisation. He terminated the relationship abruptly in 1985.
O’Hanlon J granted the nullity petition and held that the marriage was null and void on the ground that at the time of its solemnisation, the respondent was incapable by reason of psychiatric illness of giving a full, free and informed consent to the marriage and was incapable by reason of such psychiatric condition of entering into and sustaining a normal marriage relationship.
Legeyt v. O’Brien [1834] Milw Rep 325)
This relates to whether the person was in “a state of disability, natural or artificial, which created a want of reason or volition amounting to incapacity to consent.”
If a party is so intoxicated that he/she is incapable of giving full consent, the marriage is void.
Swift v. Kelly [1835] 3 Knapp 257
No marriage shall be held void merely upon proof that it had been contracted upon false representations and that but for such contrivances, consent would never have been obtained. Unless the party imposed upon has been deceived as to the person and thus, has given no consent at all, there is no degree of deception which can avail to set aside a contract of marriage knowingly made.
Moss v. Moss [1897] P 263)
is also authority that a concealed pregnancy by the wife who at the time of their marriage was pregnant by another man did not invalidate the marriage.
F v. F [1990] 1 IR 348
had concealed his homosexual nature from the petitioner prior to the marriage. In declaring the marriage void, Barron J was “satisfied that the petitioner was totally taken in and would not have married the respondent had she even known a part of his true nature….” and the judge had no doubt that “her consent to the marriage was apparent only and not a true consent.”
