Nullity

Question 1

Void and Voidable meaning

Answer 1

Void - It never existed in the first place, so no legal effect on the individual
Voidable - Marriage exists unless declartor of nullify is obtained by CoS

Question 2

Nonage

Answer 2

16, if marry aboard but domicile here then void, but aboard and not domicile here then not void

Question 3

Already Married/CP

Answer 3

Burke v Burke
Can be criminal offence
Pre existing impediment to contract
Decorator of death

Question 4

Essential Error

Answer 4

Person/Identity -
Lang v Lang - Saliour married woman but lied about pregnancy but this wasn’t classed as identity as attributes and qualities
McLeod v Adams - Black Watch liar no error as still intended to marry him

Error as to ceremony -
Vailer v Vailer - Italain man no aware he was going through wedding ceremony
Kenward v Kenward - Married then left no more questions no held as error

Question 5

Incapacity to Understand

Answer 5

Long v Long - Had been in a mental institution but this wasn’t enough for it to be classed as incapacity to Understand
Johnston v Brown- Must be very seriously intoxicated to not understand what is going on

Doesn’t go on IQ so very high threshold

Question 6

Duress

Answer 6

There is no definition of duress, tends to be unlawful pressure though

Buckland v Buckland - sexually corrupted her and was forced to marry otherwise prosecution held to be void
Mahmood v Mahmood - Forced into marriage threaten with sent abroad and cut off financially, subjective test, believable though as had done the same to siblings
Mahmud v Madmud - Forced to marry woman even though kid with another woman but only met once held to be void.

FOMO application, can be criminal

Question 7

Lack of True Consent (Sham Marriage Doctrine) Common Law

Answer 7

Alternative motive for the marriage such as immigration, under common law could make it good.
Orlandi v Castelli - Had marriage to extend stay but didn’t have sex or live together, didn’t believe it was true marriage so void
Akram v Akram - Arranged marriage but went along with it but didn’t believe it was true
Mahmud v Mahmud- Purely to stay in country while doing a course so never consummated
Hakeem v Hussain - Wanted Nullity as was only to extend visa, didn’t regard it as a civil marriage but it was held to be one

S20A

Question 8

Voidable Marriage

Answer 8

Impotency only considered valid unless court declare that it is null.

CB v AB - Impotency is permanent and incurable
J v J - Failure to have full and complete intercourse
It can affect both sexes
It can be due to physical reasons (WY v AY - elderly couple) G v G - Physical repulsion

It can be in relation to particular spouse, and either spouse may raise the action F v F

It must exist at time of the marriage inability to conceive/refusal of sexual intercourse not impotency

Question 9

Problems with Voidable Marriage

Answer 9

1) May be curable with help from spouse - M v W
2) May be curable but has yet to go through treatment
3) It’s treatable but refuse to undergo treatment - WY v AY
4) It would involve intolerable pain or danger to individual, unlikely now because of medical technology

Personal Bar - CB v AB - Action for divorce countered with this it was a delaying tactic no bar in this car

Personal Bar will apply when -
Pursuer knew of impotency and accepted it - L v L - Married a paralysed woman
When you marry someone a lot older
When actions are inequitable to grant declartor of nullity - AB v CB - Knew had child via AI was granted thought to be unfair

Only between opposite sex
Thought it should be abolished 1992