Divorce and Separation

Void and Voidable Marriage

Proceedings for nullity are extremely rare but may be appropriate where parties have strong religious or cultural reasons for opposing divorce.

Unlike divorce proceedings, an annulment can take place any time after you were married (for a divorce, you have to wait 12 months).  However, it is necessary to establish that the marriage was either not valid in the first place (‘void’), or is defective (‘voidable’).   Nullity proceedings are quite expensive because a court hearing will be necessary, nullity proceedings cannot be dealt with ‘on paper’.

Void marriages are not valid where the parties are:

  • within the prohibited degree of relationship, for example the family relationship is too close, such as mother/son, father/daughter, sister/brother, aunt/nephew. However, stepfather/stepdaughter and stepmother/stepson can get married if they are both over the age of 21 and the child was not a child of the family in relation to the other while under the age of 18. Also, following a recent change in the law by the European Court of Human Rights, a person can now marry his or her child’s former spouse or his or her parents former spouse;
  • either party is under the age of 16; or
  • the parties have intermarried in disregard to certain requirements as to the formation of a marriage.

Other grounds for nullity include the situation where at the time of marriage either party was already married and a polygamous marriage entered into outside England and Wales and either party was domiciled in England and Wales at the time of the marriage.

Both parties to a marriage must be aged over 16 at the time of the ceremony, must not be already married and must not be in a polygamous marriage.

Voidable marriages arise where:

  • the marriage has not been consummated owing to the incapacity of one party;
  • the marriage has not been consummated owing to the wilful refusal of the respondent not to consummate it;
  • either party to the marriage did not consent;
  • at the time of the marriage one of the parties was suffering a mental health disorder so as to be unfit for marriage;
  • at the time of the marriage the respondent was suffering from a venereal disease;
  • at the time of the marriage the respondent was pregnant by another man;
  • that an interim gender recognition certificate was issued to either party at the time of the marriage;
  • the respondent’s gender has changed from the gender at the time of the marriage.

A petition will not be accepted if before the marriage, the petitioner knew about the lack of consent, mental unfitness, pregnancy by another, venereal disease or acquired gender if three years have passed from the date of the marriage.

Incapacity can be either a physical or mental condition but it must be permanent and incurable.

Wilful refusal must be a definite decision come to without just excuse. The court will need to investigate the history of the marriage. An example may come about where the parties had married on the basis that they would not cohabit until a religious ceremony was complete and then one party refuses to go through the religious ceremony.

Lack of consent can be brought about as a result of duress, mistake or suffering a mental condition.