Unit 4

NULLITY OF MARRIAGE

Aim

The aim of this Unit is to show the circumstances in which a seemingly valid marriage
may be of no legal effect, or invalidated.

Note: also conflict arising from “prohibited degrees of relation” to an under civil law.

Matrimonial causes do not only concern marriages and divorces. They include matters of
judicial separation and nullity of marriages. Nullity of marriages is a declaration that a
seemingly valid marriage is void i.e. one which has legally never been or voidable i.e.
one that is valid for all intents and purposes until it has been declared void. This is the
subject of this unit.

At the end of the unit, you should be able to distinguish reasons for nullity from those
relating to other matrimonial causes.

Topic 1: Nullity: Introduction

It is a fundamental human right recognized in civil law that men and women of
marriageable age have the right to marry a person of their choice and to found a family.
The existence of substantial and fundamental defects and irregularities in the contract of
marriage may result in a marriage being declared a nullity when it is void ab initio under
section 11 of the Matrimonial Causes Act 1973 and Sections 32 and 33 of the Marriage
Act of Zambia or voidable under section 12 Matrimonial Causes Act 1973. Upon
nullifying the marriage under these provisions, the Court has the jurisdiction to deal with
questions of property settlement and child custody as in a divorce.

A void marriage is one that is null and void with no legal effect from the start, while a
voidable marriage is one valid until it is annulled during the life time of the parties to it.

33
Lord, Green, Master of Rolls in Reneville v Reneville1 made a clear distinction between
void and voidable marriages when he said:

“A void marriage is one that will be regarded by every court in any case in which the existence of
the marriage is in issue as not having taken place, and can be so treated by both parties to it
without the necessity of any decree annulling it”

Literally there is no need to go to Court to declare it null and void. The parties need just
break-up and find someone else to marry. The petitioner should however, present the
matter to Court for the declaration.

Further, Lord Green went on:

“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”

Nullity is available under civil law by the marriage Act Cap 50 and the MCA 73, and is
also available to parties married under customary law. The basis for nullifying a civil
marriage, is however, generally different, as discussed below.2
Vgtt

Topic 2: Void Marriages

One of the requirements for a valid civil marriage is that the parties must have attained
the marital age of twenty-one unless, if sixteen and above that, they have obtained written
consent from their parent or legal guardian. This is regulated by both the Marriage Act of
Zambia and the MCA 73. The Marriage Act Cap 50 provides as follows

Invalid marriages 32. (1) No marriage in Zambia shall be valid-

(a) which if solemnised in England would, under the

law relating to prohibited degrees of marriage for the time being in
force in England, be null and void on the ground of kindred or affinity;

(b) where either of the parties thereto at the time of the

1
(1948) ALL ER at 60
2
Factors that may invalidate a customary marriage have been discussed under chapter 4 and nothing more
will be said about them in this chapter.

34
 celebration of such marriage is married by African customary law to
any person other than the person with whom such marriage is had.

(2) A marriage shall be null and void if both parties knowingly

and willfully acquiesce in its solemnisation-

(a) in any place other than the office of a Registrar or a licensed place of
worship or a place authorised by the special licence; or
(b) under a false name or names; or

(c) without the Registrar's certificate of notice or special

licence having been duly issued; or

(d) by a person not being a licensed minister of some religious

denomination or body or a Registrar.

(As amended by No. 11 of 1937, No. 48 of 1963

and G.N. No. 316 of 1964)

Void marriages 33. (1) A marriage between persons either of whom is under the
age of sixteen years shall be void:

Provided that this section shall not apply when a Judge of the High Court has,
on application being made, and on being satisfied that in the particular
circumstances of the case it is not contrary to the public interest, given his \
consent to the marriage.

Exemption of (2) Nothing in this section shall affect any marriage already
existing solemnised or contracted before the 20th May, 1949.
marriages
(No. 12 of 1949 as amended by No. 6 of 1955)

Marriage under 34. Any person who is married under this Act or whose marriage is
African customary declared by this Act to be valid, shall be incapable during the
law continuance of such marriage of contracting a valid marriage under any African
customary law, but, save as aforesaid, nothing in this Act contained shall affect
the validity of any marriage contracted under or in accordance with any African
customary law, or in any manner apply to marriages so contracted.

(No. 48 of 1963)

(J.M. MONTIMBI SIWO v P. AMESI SIWO (1970) Z.R. 79 (H.C.))

Topic 2.1 Grounds on which a marriage is void

Section 11 of the Matrimonial Causes Act 1973 (MCA 73) provides as follows:-

A marriage shall be void on the following grounds only, that is to say -

(a) That it is not a valid marriage under the provisions of the Marriage Act
1949 to 1970 [the Marriage Acts 1949 to 1983] [the Marriage Acts
1949 to 1986] that is to say where –

35
 (i) the parties are within the prohibited degrees of relationship
(ii) either party is under the age of sixteen
(iii) the parties have either inter married in disregard of certain
requirements as to the formation of marriage

(b) That at the time of marriage either party was already lawfully married;
(c) That the parties are not respectively male and female
(d) In the case of a polygamous marriage entered into outside England and
Wales, that either party was at the time of marriage domiciled in
England and Wales

For the purpose of paragraph (d) of this section a marriage may be polygamous
although at its inception neither party has any spouse additional to the other.

Section 11 is in line with the definition of marriage given by Lord Penzance in Hyde v
Hyde (1866) that marriage is a voluntary union for life of one man and one woman to the
exclusion of all others.
The grounds are discussed hereunder:

1. By Section 11 (a) (i) Parties within Prohibited degrees of Relationship

A degree is a parent – child link and is computed from the nearest common
ancestor of the parties in question.

Included in the chain are all persons related not only by blood (ie consanguinity)
but also by marriage (ie by affinity). It is immaterial whether the relationship is
of the whole blood or half blood, or whether it is traced through, or to any person
of, illegitimate birth.

Examples of Prohibited Degrees of Consanguinity and Affinity

Consanguinity Affinity

Marriage of a man is prohibited if the woman is, or has been, his3

Ancestress Wife’s Mother

Descendant Wife’s Grandmother

Wife’s Daughter

Sister Wife’s Son’s Daughter

Wife’s Daughter’s Daughter

3
Cretney S.M and J.M Masson: Principles of Family Law 1997 6th ed. (Sweet Maxwell, London

36
 Father’s Sister Father’s Wife

Mother’s Sister Grandfather’s Wife

Son’s Wife

Brother’s Daughter Son’s Son’s Wife

Sister’s Daughter Daughter’s Sons Wife

Marriage of a woman is prohibited if the man is, or has been, her

Ancestor Husband’s Father

Descendant Husband’s Grandfather

Brother Husband’s Son

Father’s Brother Husband’s Son’s Son

Mother’s Brother Daughter’s Son

Brother’s Son Mother’s Husband

Sister’s Son Grandmother’s Husband

Daughter’s Husband

Son’s Daughter’s Husband

Daughter’s Daughter’s Husband

(HAFIZ AYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.) 1992/HP/D/28)

MUZYAMBA, W.M. , J.

2. By Section 11(a) (ii) Either party under the age of sixteen (16)

See also section 33 of the Marriage Act which provides as follows: A marriage
between persons either of whom is under the age 16 years shall be void unless consent was given
by a High Court Judge upon being satisfied that such marriage would not be contrary to public
policy

CULLINAN, J

3. By Section 11(b) Either party already lawfully married

The People v Chitambala (1969) ZR 142 (HC)

37
On 12th April, 1964, a valid marriage was contracted between one Annie Mumbi and the
accused in accordance with the requirements of the Marriage Ordinance Cap. 132. The
parties had cohabited: The marriage had been consummated. There were children aged
2, 3 and 4 years respectively. The accused later contracted another marriage with Grace
Lombe.

[1] It was now suggested that accused had an honest belief on reasonable grounds that at
the time of his second marriage his former marriage had been dissolved. It was now to be
decided whether the defence put up by the accused satisfied the Court that he had in fact
such honest belief and that it was caused on reasonable grounds. The accused was
convicted of bigamy.

Topic 2.2 Jurisdiction to Try Civil Marriages

In Sithole v Sithole4 the parties’ marriage was in accordance with Ngoni tribal custom and the
ceremonies and formalities described in evidence constituted a valid marriage under
Ngoni customary law. A second ceremony of marriage took place under the provisions
of the Marriage Ordinance, Chapter 132 now Marriage Act Chapter 50 of the Laws of
Zambia, at the office of the Registrar of Marriages in Lusaka on the 10th July, 1965, and
this marriage was proved by the production of a certificate issued under the provisions of
section 29 of the Marriage Ordinance.

The Sithole marriage under Ngoni law was potentially polygamous although there was
only one wife. Section 38 of the Marriage Act allows a person married under customary
law to marry his customary spouse and the second marriage ceremony is a valid one. The
marriage under the Marriage Act made their marriage monogamous. Both the customary
and civil ceremonies of marriage were valid, but the second ceremony converted the
potentially polygamous union into a monogamous one. As such the High Court had
jurisdiction to adjudicate upon it. In Cheni v Cheni, it was held that the courts had
jurisdiction to adjudicate on a marriage which, although potentially polygamous at it

4
1969 ZR 92 See whole judgment below

38
inception had become monogamous on the date of the commencement of the
proceedings. In the course of his judgment Sir Jocelyn Simon P. reviewed the law and
said (at 92):

‘’Therefore, on weight of authority, on principle and on ground of convenience I

am of opinion that if the marriage is monogamous at the time of the proceedings,
albeit potentially polygamous on its inception, the court has jurisdiction to
adjudicate upon it.”

In the case of Ohochuku v Ohochuku5 the facts were that the parties to a potentially
polygamous marriage in Nigeria were later married in an English Registry Office. The
court recognized the marriage as a valid case of conversion of a polygamous marriage
into a monogamous marriage and pronounced a decree dissolving the marriage.

(JENALA NAMBEYE v CHILESHE CHIRWA (1979) Z.R. 117 (H.C.))

4. By Section 11 (c) Parties not Respectively male and female

In Cornertt v Corbett6 Ormrod J. held that the biological criteria must be applied
to determine a person’s sex, thereby rejecting the psychological identity that made
the person born a man feel and behave like a woman.

What of surgery to change sex? The issue is of trans – sexuals. Compare this
with a European Court of Human Rights case: Rees v United Kingdom7 where the
applicant claimed that as a transsexual he was a victim of national legislation,
contrary to his right to respect for his private life, as enshrined in article 8 of the
European Convention on Human Rights. He also cited Article 12 which provides
that every one has a right to marry freely. He lost his case. His birth certificate
indicated that he was born a woman. Secondly the appropriate Marriage Act had
in mind biological sex with respect to the concept of marriage. Here is the full
judgment of Ormond J.

5
6
7
(1987) 2 FLR III

39
Topic 3: Voidable Marriages

A voidable marriage is one which may be valid until it is declared voidable by one of the
parties to the marriage or an interested person taking action to have it annulled. Section
12 of the Matrimonial Causes Act 1973 provides that any child who would have been the
legitimate child of the parties to the marriage if at the date of the decree of nullity it had
been dissolved instead of being annulled shall be deemed to be their legitimate child.

Nullification of a voidable marriage requires one of the parties to the marriage or an

interested party, to take Court action to declare it invalid

Section 12 provides the grounds on which a marriage shall be voidable

12 A marriage… shall be voidable on the following grounds only, that is to say

a. that the marriage has not been consummated owing to the incapacity of either party to
consummate it.

b. That the marriage has not been consummated owing to the willful refusal of the
respondent to consummate it

c. That either party to the marriage did not validly consent to it, whether in consequence of
duress, mistake, unsoundness of mind or otherwise

d. That 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 Health Act 1983 of such a kind or to such an extent as to be
unfitted for marriage

e. That at the time of the marriage the Respondent was suffering from veneral disease in a
communicable form

f. That at the time of marriage the Respondent was pregnant by some person other than the
petitioner.

Section 12 of the MCA 73 makes it clear that a marriage is deemed valid until one
party takes action to have it annulled.

Topic 3.1 Non - consummation

Section 12 (a) MCA 73 provides that a marriage is voidable if the marriage has
not been consummated1 owing to the incapacity of either party.

40
 Consummation is the first post – marital act of intercourse between the spouses.
Intercourse must be ordinary and complete, not partial and imperfect. This was
held to be so by Lord Lushington in D-e v A-q8 [1845] Rob Ecc 279

In Baxter v Baxter9 1948 AC 274 this definition was refined. 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
the marriage. Lord Chancellor Viscount Jowitt raised the following points

(i) that the procreation of children is not a principal end of marriage. Sterility
will not prevent consummation.

(ii) Parliament was not concerned with matters of such intimate nature when it
used the term consummate in section 12 of the Matrimonial Causes Act
1973 and that the word consummate had to be understood in its common
usage and in the light of social conditions known to exist.

Intercourse before marriage does not count. See case of Dredge v Dredge 1947 All ER 29. It must
be intercourse in the terms of D-e v A-q. For a complete definition or explanation one needs to
look at decisions based on the Penal Code for offences relating to sexual intercourse. One of the
terms used there is penetration as an act to complete intercourse10

Non consummation refers to the inability of the spouses to perform the act of intercourse.
Failure may be due to physical or psychological factors.

In D v D [1982] 12 Family Law Reports 101, the Petitioner, a party to an arranged marriage,
proved to the satisfaction of Court that at the time of marriage and ever since, she was
unable to consummate her marriage due to invincible repugnance to the act with her
husband.

8
Hilda Mpashi v Herman Mpashi 1996/HP/D.28
9
10

41
Section 12 (b) of the Matrimonial Causes Act provides for other causes for failure to
consummate. Inability to consummate may be caused by serious defects which require a
dangerous operation to cure.

If it is not dangerous to operate and a party refuses to undergo the operation, then there is
willful refusal.

Any party to a marriage may petition on her/his own incapacity.

Harthan v Harthan [1949] P.115 acknowledges this fact, but the Petitioner must
prove that she/he did not know of the defect at the time of marriage. The Courts
will also need to be satisfied that it will not be unjust to grant the decree of nullity.

Topic 3.2 Willful refusal to consummate

This has been part of the grounds to nullify a marriage since 1937, and qualifications
under the present ground of divorce as unreasonable behavior.

In Horton v Horton11 [1947] 2 All ER 871, the House of Lords, through Viscount Jowitt,
said:
“The words (willful refusal) connote a settled and definite decision come to without just
excuse, and, in determining whether there has been such a refusal, the judge should have
regard to the whole history of the marriage.”

Topic 3.3 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 genuine
consent is common in arranged marriages and is a ground for nullifying such a
marriage if it was conducted under civil law.

Topic 4: Although there is a big gap in law reporting of cases of the Zambian
Courts, there appear to be no cases on which a marriage has been invalidated on the
ground that the respondent was suffering from a venereal disease in a communicable

11

42
form, or that at the time of the marriage the respondent was pregnant by a man other than
the petitioner.

There are cases, however, where a spouse has become pregnant by some person
other than the husband during separation. [A big issue is always made out of this.
As nature would have it, a man can sleep with other women and not be questioned
about it unless it became too obvious and public. A woman’s secret love affair
during the separation may result into and therefore become public and disgraceful,
for which she may forfeit any claim to maintenance and property settlement]

Other cases: Hafiz Ayub Durga v Namunnisa Ismail (1992) SJ, Montimbi Siwo
v Amesi Siwo (1970) ZR 79, Muyamwa v Muyamwa (1976) ZR 146, The People
v Katonga (1974), The People v Nkhoma (1978) ZR 4, The People v Rexburg
(1972) ZR 31, Jenala Nambye v Chileshe Chirwa (1979) ZR 117, Wendy Patricia
Patridge v Joseph Titus Patridge (1985) ZR 223

43
Questions for Discussion

1. Distinguish a void marriage from a voidable marriage

2. What are prohibited degress of relationship and what effect do they have on:
(a) Civil marriages
(b) customary marriages
3. What are marriages of convenience?
4. In an undefended divorce petition for a decree of nullity on the ground that the
marriage was never consummated, the petitioner pleaded the parties never
cohabited together. She resides at 1 Eucalyptus Avenue, Chelston at Lusaka
while the Respondent was domiciled in Zimbabwe. There were no children of the
family living. What is the likely outcome of this case?

44