Adult Relations - Nullity of Marriage (England and Wales)

Void Marriage
1. Declarations as to Marital Status
  1. s.55 Family Law Act 1986 - Declarations as to Marital Status
    1. (a) Declaration that marriage was void at its inception
      1. N.B. no power to apply for such a declaration, proper procedure to seek decree of nullity and court will make orders relating to children and financial relief per Family Law Act 1986 s.58(5)(a)
        A Local Authority v X and a Child (2013) EWHC 3274 (Fam) [2014] 2 FLR 123
        Forced marriage, Pakistani girl (>16) domiciled in England, fell pregnant after consummation of marriage
        Care proceedings commenced, COURT DECIDED because >16 according to Marriage Act 1949 lacked capacity to marry and therefore marriage void
        However, statutory bar of s.58(5) meant that court would not present decree and therefore refused petition sought by local authority
        Applications may however be made to the High Court for a declaration that there never was a marriage
    2. (b) declaration that marriage subsisted on a date specified in the application
    3. (c) Declaration that the marriage did not subsist on a date so specified
    4. (d) Declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales
    5. (e) Declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales
2. Formal Defects in Marital Ceremony
  1. NOT EVERY DEFECT WILL RENDER MARRIAGE VOID
    1. Socially desirable concept, evasion of all marriages with minor technical defects would go against public policy
    2. Some defects will not render nullity at all, some will be void if both parties contracted to the marriage with knowledge of the default
      1. If only one party has knowledge of defect then they commit the criminal act of perjury under s.3 of the Perjury Act 1911
  2. Defects that will NEVER invalidate a marriage
    1. Marriage Act 1949 s.24 & 48
      1. (i) that any statutory residence requirements were not fulfilled
      2. (ii) absence of necessary consent concerning the marriage of a minor by common license or superintendent registrar's certificate
      3. (iii) that the registered building in which the marriage took place had not been certified as a place of religious worship or was not the parties usual place of worship
      4. (iv) incorrect declaration made in order to be permitted to marry in a registered building
  3. Defects which MAY invalidate a marriage
    1. For Marriages According to CofE rules
      1. (i) failure to publish banns correctly or to obtain a common license/certificate
        (ii) solemnisation in a place other than one where Banns may be published or to which the certificate applied
        (iii) solemnisation by a person not in Holy Orders
        (iv) marriage outside time limit after publication of banns/issue of license/entry of notice
        (v) marriage of a minor where a person so entitled has dissented
        (vi) where same-sex couples have pursued a religious marriage but the religious authority has not given written consent to opt-in and perform such a marriage (parties MUST have done so knowingly and willingly)
3. Lack of Capacity to Marry
  1. s.11 Matrimonial Causes Act 1973 - Grounds on which a Marriage is Void
    1. (a)(i) - Prohibited Degrees
    2. (a)(ii) - either party >16
    3. (a)(iii) - intermarriage with disregard to requirements of formation
    4. (b) at time of marriage either party was already lawfully married or in CP
    5. (d) in case of polygamous marriage entered into outside England and Wales that either party at the time of the marriage was domiciled in England or Wales
Voidable Marriage
1. s.12 Matrimonial Causes Act 1973 - Grounds for Voidability
  1. (i) incapacity of either party to consumate
    1. (ii) wilful refusal of respondent to consumate
      1. (iii) No valid consent by either of the parties, by either duress, mistake or unsoundness of mind
        (iv) though capable of giving consent was suffering from mental disorder within the meaning of the MHA 1983 as to be unfit for marriage
        (v) suffering from venereal disease at the time of the marriage which was in a communicable form
        (vi) pregnancy at time of marriage by someone other than the pursuer
        (vii) Gender Recognition Certificate issued to either party after the marriage occurs
        (viii) Respondent is a person whose gender at time of marriage had become acquired
        under Gender Recognition Act 2004
        under Gender Recognition Act 2004
      2. Not applicable to same-sex couples
    2. Not applicable to same-sex couples
  2. (iii) - (viii) also applicable to marriages converted from Civil Partnership
    1. N.B. as per s.12A Matrimonial Causes Act 1973 (grounds on which a marriage converted from civil partnership will be void or voidable)
      1. Marriages resulting from purported conversion of a VOID civil partnership are also VOID (application of s.12(1) (c)-(h)
2. s.13 Matrimonial Causes Act 1973 - Personal Bar
  1. ss.(1)(a) no decree granted if petitioner led the respondent to believe that he would not seek to avoid the marriage
    1. ss.(1)(b) no decree if it would be unjust to the respondent to grant such a decree
  2. ss.(2) - interaction of s.12 and s.13 applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
    1. (a) no decree unless satisfied that proceedings were instituted within the period of three years from the date of the marriage
    2. (b) leave for institution of proceedings after expiration of such a period granted under ss.(4)
  3. ss.(2A) - applicable to paragraph (g) of s.12
    1. Time limit of six months from date of issue of interim GRC
  4. ss.(3) - applicableto paragraph''s (e) (f) and (h) of s.12
    1. petitioner barred from decree unless ignorant of the facts alleged
  5. ss.(4) - applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
    1. judge may grant leave for institution of proceedings after an expiration period IF
      1. he is satisfied that the petitioner has at some time during that period suffered from mental disorder within the meaning of the MHA 1983
      2. he considers that in all the circumstances of the case it would be JUST to grant leave for the institution of proceedings
      3. an application for leave under ss.(4) may be made after the expiration of the period of three years from the date of the marriage

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Adult Relations - Nullity of Marriage (England and Wales)

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