Family Law Answer Structure (No plagiarism or AI)
Marriage and civil partnership
There are two separate kinds of nullity that might apply to marriage. The first
one is that the marriage is void. The grounds on which a marriage is void are set
out in Section 11 Matrimonial Causes Act (MCA) 1973. The second one is that
the marriage is voidable. The grounds on which a marriage is voidable are set out
in Section 12 Matrimonial Causes Act 1973.
❖ Void marriage
Void marriages are considered to have never existed due to non-compliance of
specific requirements like age, formalities or due to bigamy (S11 MCA 1973).
Third parties may challenge the validity. A void marriage is automatically void and
does not need a decree of nullity to terminate the marriage.
Grounds for a void marriage (S11 MCA 1973):
1. the parties are within the prohibited degree of relationship. (S11(a)(i))
2. either party is under 18 years old. (S11(a)(ii))
3. the parties have intermarried in disregard of certain requirements as
to the formation of marriage. (S11(a)(iii))
If the parties to a marriage proceeded with knowledge that
there are defective formalities, the marriage will be deemed void
(Gereis v Yagoub (1997)).
S24 and S28 of the Marriage Act (MA) 1949 expressly
state that certain defects, such as the failure to obtain the
necessary consents, will not render a marriage invalid.
S25 and S49 MA 1949 outline the defects that will render a
marriage invalid, but only in cases where the parties knowingly and
wilfully attempt to marry in violation of the requirements.
Zack Scott’s UOL notes
, 4. at the time of the marriage either party was already lawfully married
or a civil partner (Bigamy). (S11(b))
When a married person wants to marry someone else, they
must first obtain a decree of divorce or wait until their spouse has
passed away (Dredge v Dredge (1947)).
Even if a successful defence to a charge of bigamy was
pleaded and the parties had reason to believe that the other party
to the marriage was deceased, the marriage is still void.
5. in the case of a polygamous marriage entered into outside England and
Wales, that either party was at the time of the marriage domiciled in
England and Wales. (S11(d))
❖ Voidable marriage
A voidable marriage is one that, up until a nullity order has been issued on the
application of either party to the marriage by a court with the necessary
jurisdiction, will be regarded by all courts as a valid marriage. (S12 MCA 1973;
De Reneville v De Reneville (1948)).
Grounds for a voidable marriage (S12 MCA 1973):
1. the marriage has not been consummated due to the incapacity of either
party to do so; (S12(1)(a))
A person can petition on the grounds of his own incapacity.
Consummation requires intercourse which is ordinary and complete,
instead of being partial and imperfect (Dr Lushington in D v A
(1845)).
The incapacity may have a physiological or psychological basis;
however, it must be permanent or incurable. It must be
demonstrated whether the incapacity is permanent and unable to
Zack Scott’s UOL notes
, be corrected by surgery (Clarke v Clarke (1943)). On psychological
incapacity, an ability to consummate may result from a party’s
“invisible repugnance” (Singh v Singh (1971)). It can be challenging
to prove this, because there has to be “paralysis of the will”, not
just a dislike of the partner (G v G (1924)).
2. the marriage has not been consummated due to the respondent's wilful
refusal to do so; (S12(1)(b))
In Horton v Horton (1947), when either party to the
marriage voluntarily chooses not to consummate it, the marriage is
voidable. However, this ground requires a settled and definite
decision without just excuse (Religious reasons, by agreement).
“Wilful refusal” may occur where the parties agreed to only
have intercourse under specific circumstances (for instance, after
a religious ceremony) (Kaur v Singh (1972)).
A party cannot seek a decree to nullity from his or her own
refusal to consummate the marriage.
3. neither party to the marriage gave their valid consent, whether due to
duress, a mistake, unsoundness of mind, or otherwise; (S12(1)(c))
In the past, the threat of death or other serious harm was
required for the threat to negate consent to the marriage. However,
the COA has acknowledged that any form of threat can negate
consent ever since Hirani v Hirani (1982). The impact of the
threat, not its form, is what matters to the courts (P v R (Forced
Marriage) (2003)). On the other hand, the courts will need proof
that the impact of the threats was such that the victim felt that
they had no genuine choice, rather than just being under pressure.
Zack Scott’s UOL notes
, There are two circumstances where a mistake will invalidate
the consent to a marriage: Mistake regarding the ceremony's
nature and identity.
A marriage will only be deemed invalid due to mental illness if
either party were unable to comprehend the nature of marriage and
the obligations and responsibilities it entails at the time of the
ceremony. (Re the Estate of Park (1954)).
Then there is a mistake as to the other person’s identity. It
has to be a mistake as to identity instead of a mistake as to
attribute (Militante v Ogunwomoju (1993)).
A mistake to the legal effects of marriage is not enough
(Messina v Smith (1971)). Mistake as to attributes is also not
enough (C v C (1942)).
4. at the time of the marriage, either party, though capable of giving their
valid consent, was suffering, whether continuously or intermittently,
from a mental disorder within the meaning of the Mental Health Act
1983 of such a kind or to such an extent as to be deemed unfitted for
marriage; (S12(1)(d))
A petitioner may use his or her own mental disorder to nullify
a marriage where consent was given.
The capacity to understand the nature of the marriage
contract serves as the test for determining a person's capacity to
marry, not one's capacity to understand the implications of a
particular marriage (Sheffield City Council v E (2004)).
Zack Scott’s UOL notes
