Adult Relations - Nullity of Marriage (England and Wales)
Description
Law (Comparative Scottish and English Family Law) Mind Map on Adult Relations - Nullity of Marriage (England and Wales), created by Ruaraidh Simpson on 16/04/2017.
Adult Relations - Nullity of
Marriage (England and Wales)
Void Marriage
Declarations as to Marital Status
s.55 Family Law Act 1986 - Declarations as to Marital Status
(a) Declaration that marriage was void at its inception
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
(b) declaration that marriage subsisted
on a date specified in the application
(c) Declaration that the marriage did
not subsist on a date so specified
(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
(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
Formal Defects in Marital Ceremony
NOT EVERY DEFECT WILL RENDER MARRIAGE VOID
Socially desirable concept, evasion of all marriages with
minor technical defects would go against public policy
Some defects will
not render nullity
at all, some will be
void if both parties
contracted to the
marriage with
knowledge of the
default
If only one party has knowledge of defect
then they commit the criminal act of
perjury under s.3 of the Perjury Act 1911
Defects that will NEVER invalidate a marriage
Marriage Act 1949 s.24 & 48
(i) that any statutory residence
requirements were not fulfilled
(ii) absence of necessary consent concerning
the marriage of a minor by common license
or superintendent registrar's certificate
(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
(iv) incorrect declaration made in order to be
permitted to marry in a registered building
Defects which MAY invalidate a marriage
For Marriages According to CofE rules
(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)
Lack of Capacity to Marry
s.11 Matrimonial Causes Act 1973 -
Grounds on which a Marriage is Void
(a)(i) - Prohibited Degrees
(a)(ii) - either party >16
(a)(iii) - intermarriage with disregard to
requirements of formation
(b) at time of marriage either party was
already lawfully married or in CP
(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
s.12 Matrimonial Causes Act 1973 - Grounds for Voidability
(i) incapacity of either party to consumate
(ii) wilful refusal of respondent to consumate
(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
Not applicable to same-sex couples
Not applicable to same-sex couples
(iii) - (viii) also applicable to marriages converted from Civil Partnership
N.B. as per s.12A Matrimonial Causes Act 1973 (grounds on which a marriage converted from civil partnership will be void or voidable)
Marriages resulting from purported conversion of a VOID civil partnership are also VOID (application of s.12(1) (c)-(h)
s.13 Matrimonial Causes Act 1973 - Personal Bar
ss.(1)(a) no decree granted if petitioner
led the respondent to believe that he
would not seek to avoid the marriage
ss.(1)(b) no decree if it would be unjust
to the respondent to grant such a decree
ss.(2) - interaction of s.12 and s.13
applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
(a) no decree
unless
satisfied that
proceedings
were
instituted
within the
period of
three years
from the date
of the
marriage
(b) leave for
institution of
proceedings after
expiration of such
a period granted
under ss.(4)
ss.(2A) - applicable to paragraph (g) of s.12
Time limit of six months from date of issue of interim GRC
ss.(3) - applicableto paragraph''s (e) (f) and (h) of s.12
petitioner barred from decree unless
ignorant of the facts alleged
ss.(4) - applicable to paragraph's (c) (d) (e) (f) and (h) of s.12
judge may grant leave for institution of proceedings after an expiration period IF
he is satisfied that the petitioner has
at some time during that period
suffered from mental disorder within
the meaning of the MHA 1983
he considers that in all the
circumstances of the case it
would be JUST to grant leave for
the institution of proceedings
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