NULLITY OF MARRIAGE Flashcards
what is Nullity of marriage?
Nullity of marriage is simply the avoidance of a marriage, as opposed to its termination by divorce.
what is the difference between nullity and divorce
In nullity of marriage, the marriage is avoided as it was invalid from the beginning, or that having been valid from the beginning has become void, and hence there is no marriage that exists.
On the other hand, in termination of marriage through divorce, the circumstance is such that the marriage is valid from the beginning and that the marriage remains valid, but the parties to it, wish to terminate it.
what is the distinction between a void and avoidable marriage ?
A void marriage is one that is null and void with no legal effect from the start, while avoidable marriage is one valid until it is annulled during the life time of the parties to it.
GROUNDS UPON WHICH MARRIAGE IS VOID
(i) Marriage contracted between parties falling within the prohibited degree of kindred or
affinity.
(ii) When either party to the marriage is married by African customary law to any person
other than the person with whom such marriages is had.
(iii) When the parties have not complied with the solemnization requirements.
(iv) When either party to the marriage is under the age of sixteen years.
(V) that either party to the marriage was lawfully married to some other person at the time of the marriage.
(VI) the parties to the marriage are of the same sex.
what is a voidable marriage?
“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.”
GROUNDS UPON WHICH MARRIAGE IS VOIDABLE
(a) the marriage has not been consummated due to the incapacity of either party to consummate it;
(b) the marriage has not been consummated due to the willful refusal of the respondent to consummate it;
(c) either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of
mind or otherwise;
(d) at the time of the marriage either party, though capable of giving a valid consent, was suffering, whether continuously or intermittently, from a mental disorder within the meaning of the Mental Disorders Act of such a kind or to such an
extent as to be unfitted for marriage;
(e) at the time of marriage, the respondent was suffering from a sexually transmitted disease in a communicable form; or
(f) at the time of the marriage the respondent was pregnant by someone other than the petitioner.
what is consummation of a marriage?
Consummation is the first post-marital act of intercourse between the spouses.
what is non-consummation of a marriage?
non-consummation refers to the inability of the spouses to perform the act of intercourse. This failure may be due to incapacity to consummate or willful refusal to consummate.
Baxter v Baxter,
the husband was not allowed by his wife to have sexual intercourse with her unless he had a contraceptive sheath because she did not want children. Eventually, he sought a decree of nullity on the ground that his wife had willfully refused to consummate his marriage. Lord Chancellor Viscount Jowitt ruled that there was no willful refusal to consummate the marriage as contraception did not prevent consummation. He further stated that the procreation of children
is not a principal end of marriage. Sterility will not prevent consummation.
LACK OF VALID CONSENT
A marriage will be voidable if either party to it did not validly consent either because of duress, mistake, unsoundness of mind or otherwise.
LACK OF VALID CONSENT DUE TO MENTAL DISORDER
A marriage is voidable as provided by section 26 (d) of the Act, if at the time of the Marriage either party, though capable of giving a valid consent, was suffering, whether continuously or intermittently, from mental disorder within the meaning of the Mental Disorder Act Cap 35 of the Laws of Zambia of such a kind or to such an extent to be unfit for marriage.
WHERE RESPONDENT WAS SUFFERING FROM A
COMMUNICABLE SEXUALLY TRANSMITTED DISEASE
As provided in section 29(e), a marriage is voidable if at the time of the marriage, the respondent was suffering from a sexually transmitted disease in a communicable form.
WHERE RESPONDENT WAS PREGNANT BY SOMEONE ELSE
As provided by section 29 (f), a marriage is voidable if at the time of the marriage, the respondent was pregnant by someone other than the petitioner.
limitations on the powers of the
courts to nullify avoidable marriage.
where one party to the marriage, knowing that the marriage is voidable and that they have a right to nullify the marriage conduct themselves in a manner that leads the other party to reasonably believe that party will not nullify the marriage. In addition, the court is barred from nullifying voidable marriage where doing so will be unjust to the respondent. It follows that for a petitioner to succeed on a petition to nullify avoidable marriage based on grounds that the respondent was suffering from a communicable sexually transmitted disease, or that the respondent was pregnant by someone else at the time of the marriage, the petitioner must prove that he was ignorant of these facts at the time of marriage and that the petitioner must
bring the action within 3years from the date of the marriage.
EFFECTS OF NULLITY OF MARRIAGE
the effect of nullity of a voidable marriage is that the marriage is treated as having been valid up to the time of nullification. In addition, according to subsection (2) of section 33, a decree of nullity nullifying a voidable marriage does not render illegitimate any child of the parties born or legitimated during the subsistence of the marriage before nullification.
