Nullity Flashcards
Why is nullity important?
It provides guidance on what constitutes a valid marriage.
What acts are the laws contained in?
Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.
In what year and by who was the law surrounding nullity reviewed?
1970 Law Commission.
What did the 1970 Law Commission report contain?
There should be a distinction between annulment and divorce.
Stigma attached to divorce.
Time period for divorce longer than for annulment (for divorce you had to be married for 3 years before you could petition, now it is 1 year.)
What is a void marriage?
Never a valid marriage.
What is a voidable marriage?
Valid until avoided.
Why does nullity still exist?
Gives guidance on what makes a marriage void.
Divorce not acceptable to everyone.
Religious/ cultural reasons.
Forced marriage.
Reneville v de Reneville [1948] 1 All ER 56
‘A void marriage will be regarded as one that never took place…’
Non marriages have no legal consequences
Hudson v Leigh [2009] Re factors can be taken into account to decide if a marriage is a non-marriage.
Void Marriages factors
No need for decree (but having one resolves uncertainty.
Third party can challenge validity of marriage.
No defences to annulment.
You can marry another without having current marriage annulled.
Decree possible after death.
Voidable Marriages factors
Decree necessary.
Third parties cannot challenge.
Decree possible after death.
What are the grounds for a void marriage?
Prohibited degrees of relationship- certain relationships of affinity and consanguinity.
Under 16- need consent between 16 and 18 but marriage still valid.
Alhaji Mohammed v Knott [1968] 2 WLR 1446
Couple were domiciled in Nigeria. Wife was 13 when married in Nigeria where marriage was legal. It was still valid in this country. (Due to domicile and legality in that country.)
Pugh v Pugh [1951] 2 All ER 680
Marriage took place in Austria between 15 year old Hungarian girl and British-domiciled man. The marriage was valid in Austria. Wasn’t valid because of husband’s domicile.
Gereis v Yacoub [1997] 1 FLR854
A couple got married in a Coptic church in London. Church not registered for marriages and couple warned by the priest that they would need a civil ceremony aswell. When marriage broke down the wife sought a decree of nullity but husband argued it was a non-marriage because the church was unregistered. It was held, marriage was void as the couple had treated the relationship as a marriage and husband had claimed a married man’s allowance.
Presumption of Death Act 2013
If you are already married. If you want to remarry and your spouse has disappeared then decree of presumption of death and dissolution of marriage necessary.
What are the grounds of a voidable marriage?
Incapacity of either party. (Only applies to heterosexual)
Wilful refusal of respondent. (Only applies to heterosexual)
No consent due to duress, mistake, unsoundness of mind or otherwise.
Suffering from Mental health Disorder.
Respondent suffering from VD
Respondent pregnant by another.
Interim gender recognition certificate granted to either party.
The respondent is a person whose gender has become the acquired gender.
What is consummation?
Full sexual intercourse. It must be ‘ordinary and complete’.
Important on religious grounds
Distinguishes marriage from friendship.
D v A [1984] Rob Ecl 279.
Baxter v Baxter [1948] AC 274
Wife insisted husband wore a condom. Marriage could not be annulled on grounds of non- consummation.
Boggins [1966]
Intercourse before marriage is not consummation.
Singh v Singh [1971]
Sikh woman, 17 had arranged marriage. Refused intercourse as she did not want to be married. Petition on grounds of incapacity failed. No ‘invincible repugnance’
What is wilful refusal?
You cannot petition on your own wilful refusal. It is ‘a settled and definite decision come to without just excuse’ and ‘the whole history of marriage must be looked at.’
Horton [1947] 2 All ER 871 HL
Wife reluctant to have intercourse. Sought advice from parents and priest. No wilful refusal as she as trying to overcome problem.
Ford v Ford [1987] 17 Fam. Law 232
Couple married while husband in prison. He refused intercourse when wife visited. On a home visit former girlfriend and told wife he did not wish to live with her when released. Grounds for wilful refusal.
Kaur v Singh [1972] 1 All ER 292 CA
Sikh couple had civil ceremony at register office (legal part). Would not live together and consummate until after religious ceremony. Husband refused to do this. Annulment granted to wife on grounds of wilful refusal.
What is a companionship marriage?
Whether or not they are valid will depend upon the facts. Generally if the couple are young they will be able to annul their marriage for non-consummation.
Brodie v Brodie [1971]
Young couple married as she was pregnant but they id not intend to live as a married couple. Petition on grounds of non-consummation granted.
Morgan v Morgan [1959] 2 WLR 487
Couple ages 72 and 59 had agreed to companionship marriage. Held agreement was sufficient not to have to consummate. No annulment.
Scott v Scott [1959]
Couple aged 43 and 40 had agreed to companionship marriage as wife had aversion to sex. Husband hoped she would change her mind. No annulment as husband knew she did not want sex when they married.
Are sham marriages valid marriages?
Yes.
Vervaeke v Smith [1983] 1 AC 145
Aim of marriage to avoid deportation. Married valid.
What is consent?
May be due to 4 circumstances; duress, mistake, unsoundness of mind or otherwise.
Szechter v Szechter [1971]
‘a threat of immediate danger to life limb or liberty.’
Objective test. Highlights the problems of forced marriages.
Hirani [1982] 4 FLR 232
‘Is the threat or pressure such as to overbear the will o the individual petitioner so as to destroy the reality of consent’.
Subjective test.
