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Family Law
Lectorial 3
Nullity: Marriages / civil
partnerships that are flawed

2023-2024
 Overview
Valid Marriage/CP
• Created if the rules relating to
formation were complied with
• May apply for a Declaration of
validity – s.55 Family Law Act
1986
• Will come to an end on
divorce/dissolution order or
death (or presumption of
death order)
• De facto separation or a
(judicial) separation order is
possible
Flawed Marriage/CP
• The rules relating to formation
have not been complied with
• The marriage/CP may be:
• Void
• Voidable
• Non-existent/non-qualifying
• The presumption of marriage
may ‘save’ some marriages
that are procedurally flawed
 The difference between
‘void’, ‘voidable’ and ‘non-marriages’
• Non-marriage / non-qualifying ceremony (see next lecture)
– Bears little resemblance to a marriage
– Couple treated as unmarried – cannot apply for orders under the
Matrimonial Causes Act 1973
• Void and voidable marriage:
– ‘A void marriage is one that will be regarded … as never having
taken place and can be treated by both parties to it without the
necessity of any decree annulling it; a voidable marriage is one
that will be regarded … as a valid subsisting marriage until a
decree annulling it has been pronounced …’ Lord Greene M.R. in
de Reneville v de Reneville [1948] 1 All ER 56
– Void – fundamental flaw / public policy objections
– Voidable – less significant flaw – private matter
 Grounds for a Void Marriage
• Under S.11 Matrimonial Causes Act 1973 a marriage will
be void on the following grounds:
(a)(i) the parties are within the prohibited degrees of
relationship;
(a)(ii) either party is under the age of 18;
See Pugh v Pugh [1951] 2 ALL ER 680
(a)(iii) the parties have intermarried in disregard of certain
requirements as to the formation of marriage;
Compare Gereis v Yacoub [1997] 1 FLR 854 and MA v JA
and the AG [2012] EWHC 2219
 Void Marriage Ctd.
• S.11 Matrimonial Causes Act 1973
(b) At the time of the marriage either party was already
lawfully married or a civil partner;
See AAM v KG [2018] EWHC 283 (Fam)
(d) 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
See Padero-Mernagh v Mernagh [2020] EWFC 27
 Gender
• Although S.11© Matrimonial Causes Act
1973, which provided that a marriage was
void if the parties were not male and
female respectively has been removed,
cases may arise in relation to marriages
formed before 2014
• See P v P (Transgender Application for
Declaration of Valid Marriage) [2019]
EWHC 3105 (Fam)
 Void Civil Partnerships
• S.49 Civil Partnership Act 2004 contains the grounds on
which a civil partnership is void.
• They are generally the same as marriage except:
• S.49(b) lists the formal breaches that render a civil
partnership void
• There is no equivalent of s.11(d) MCA
• S.12A Matrimonial Causes Act 1973 deals with flawed
civil partnerships that have been converted into
marriage (void and voidable)
 Consequences
• A void marriage/civil partnership is void ab initio – it is not
necessary (but is possible) to obtain a nullity order
• An application can be made immediately after marriage
• Applications are not restricted to the parties to the
marriage/civil partnership
• An application can be made after one of the parties has
died
• The parties can apply for financial remedies under the MCA
/ CPA, although it may be refused due to gross misconduct
of the applicant – J v S-T [1997] 1 FLR 402
• Children are legitimate if either party believed the marriage
to be valid – s.1(1) Legitimacy Act 1976
Voidable Marriages/ Civil Partnerships
• A voidable marriage/civil partnership is valid unless/until annulled by
the court (nullity of marriage order / nullity order) – s.16
Matrimonial Causes Act 1973
• Only the parties to marriage/civil partnership can apply for a nullity
order
• An order cannot be obtained after one of the parties has died
• Applications are restricted by bars and time limits set out in the
legislation – see later
• Children are legitimate if born before the nullity order – Re Spence
[1990] Ch 652
• The parties can apply for financial remedies under the MCA / CPA
• The 8 grounds for voidable marriage are listed in s.12 MCA 1973
• The 5 grounds for voidable civil partnership are listed in s.50 CPA
2004
 Incapacity to Consummate
• S.12(1)(a) MCA 1973 – a marriage is voidable on the
ground that it ‘has not been consummated owing to the
incapacity of either party’
• Consummation requires ‘ordinary and complete’ sexual
intercourse – D v A (1845) 163 ER 1039
• Artificial insemination is not consummation – Clarke v
Clarke [1943] 2 ALL ER 540
• Incapacity to consummate may be physical or
psychological
• Lack of attraction is not sufficient. ‘Invincible
repugnance’ is required – Singh v Singh [1971] P 226
 Wilful Refusal to Consummate
• S.12(1)(b) MCA 1973 – a marriage is voidable on the ground that it
‘has not been consummated owing to the wilful refusal of the
respondent’
• Horton [1947] 2 All ER 871 - ‘a settled and definite decision to
refuse to consummate without just excuse’
• The wife was granted an annulment in Kaur v Singh [1972] 1 All ER
292
• Morgan v Morgan [1959] 1 ALL ER 539 - companionship marriage /
agreement not to consummate
• Sham marriages are treated as valid - Vervaeke v Smith [1983] 1
AC 145
• S.12(2) - para a) and b) do not apply to same sex marriages
• There are no provisions on non-consummation in the Civil
Partnership Act 2004
 Lack of Consent: Duress
• S.12(1)© MCA 1973 states that a marriage is voidable on the
ground ‘that either party did not validity consent to it, whether in
consequence of duress, mistake, unsoundness of mind or otherwise’
• An almost identical provision is contained in s.50(1)(a) Civil
Partnership Act 2004
• Should lack of consent render a marriage void, rather than merely
voidable ? (as in Australia – s.23(1)(d) Marriage Act 1961)
• Duress originally required ‘a threat of immediate danger to life, limb
or liberty’ – Szechter v Szechter [1971] 1 WLR 171
• Today the test is whether ‘the threat or pressure’ is ‘such as to
overbear the will of the individual petition so as to destroy the
reality of consent’ - Hirani v Hirani [1982] 4 FLR 232
• See later slides on Forced Marriage
 Lack of Consent: Mistake
• An application based on lack of consent due to mistake
will only succeed if:
• the mistake relates to the nature of the ceremony ( Valier
v Valier [1925] 133 LT 830, Mehta v Mehta [1945] 2 All
690)
• or identity of the other party (Militante v Ogunwomoju
[1993] 2 FCR 335)
• but not their attributes (C v C [1942] NZLR 356)
 Lack of Consent:
Unsoundness of Mind or Otherwise
• The unsoundness of mind must exist at the date of the marriage /
civil partnership
• The test is whether the individual is ‘capable of understanding the
nature of the contract’ and ‘capable of appreciating that it involves
the responsibilities normally attaching to marriage’ (or civil
partnerships) – In the Estate of Park Deceased [1954] P112
• See Sheffield City Council v E and S [2004] EWHC 2808
• In Mundell v Name 1 (also known as Mundell v A) [2019] 4 WLR
139 the Court of Protection emphasised that the wisdom of the
marriage was irrelevant. It confirmed the test in Park and indicated
that the level of understanding required was rudimentary.
• ‘Otherwise’ – alcohol or drugs ? – Sullivan v Sullivan (1812)
2.Hag.Con 238
 Mental disorder
• S.12(1)(d) MCA 1973 – a marriage is voidable on the ground that ‘at
the time of the marriage, either party, though capable of giving
valid consent was suffering 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 unfitted for marriage’
• Bennett v Bennett [1969] 1 ALL ER 539
• An almost identical provision is contained in s.50(1)(b) Civil
Partnership Act 2004
• Compare with unsoundness of mind (concerned with lack of
consent)
• Is divorce / dissolution a more appropriate course of action ?
 VD and Pregnancy
• S.12(1)(e) MCA 1973 – a marriage is voidable on the ground that ‘at
the time of the marriage the respondent was suffering from
venereal disease in a communicable form’
• The applicant must be unaware of the situation (due to s.13(3) MCA
1973)
• There is no equivalent provision in the CPA 2004
• S.12(2)(f) MCA 1973 - a marriage is voidable on the ground that ‘at
the time of the marriage the respondent was pregnant by someone
other than the applicant’
• There is an equivalent provision in s.50(1)© CPA 2004
• The applicant must be unaware of the situation (due to s.13(3)
MCA/ s.51(6) CPA)
• Is this provision discriminatory ?
 Gender
• The Gender Recognition Act 2004 introduced 2 new grounds for
nullity
• S.12(1)(g) – a marriage is voidable on the ground that ‘an interim
gender recognition certificate under the GRA 2004 has, after the
time of the marriage, been issued to either party to the marriage’
• An equivalent provision is contained in s.50(1)(d) CPA 2004
• S.12(1)(h) – a marriage is voidable on the ground that ‘the
respondent is a person whose gender at the time of the marriage
had become the acquired gender under the GRA 2004’
• An equivalent provision is contained in s.50(1)(e) CPA 2004
• The applicant must be unaware of the situation (due to s.13(3) MCA
1973/ s.51(6) CPA 2004)
• Do these provisions contravene the spirit of the GRA ?
 Bars to a Nullity Order
• S.13(1) MCA 1973/ S.51(1) CPA 2004 - The court will not
grant a nullity order on the grounds that the marriage/ civil
partnership is voidable if the applicant knew they could
avoid the marriage/ CP but led the respondent to believe
they would not AND it would be unjust to the respondent
to make the nullity order
• Compare Pettit v Pettit (1962) 3 WLR 919 and D v D
[1979] Fam 70
• S13(3) MCA – the applicant can only claim in respect of
VD, pregnancy and acquired gender if ignorant of the facts
at the time of marriage
• S.51(6) CPA applies the same rule to civil partnerships (but
only in respect of pregnancy and acquired gender)
 Time limits
• An application can be made immediately after marriage
• S.13(2) MCA 1973 / S.51(2) CPA 2004
– Applications in relation to lack of consent, mental
health, VD (not CP), pregnancy or acquired gender
must be brought within 3 years of the date of the
marriage / civil partnership
– See B v I [2010] 1 FLR 1721
• S.13(2A) MCA 1973 / S.51(5) CPA 2004
– Applications must be brought within 6 months of the
issue of an interim gender recognition certificate
 Summary
Void Marriage/CP
• Never legally existed – no court
order needed – but can apply
for nullity order
• 3rd parties can apply for order
• Can apply after death
• No bars and time limits
• Can apply for financial orders
• Children legitimate if 1 party
believed the marriage/CP was
valid
• 4 grounds – s.11 MCA / s.49
CPA
Voidable Marriage/CP
• Valid unless and until annulled
by the court – nullity order is
essential
• 3rd parties cannot apply
• Cannot apply after death
• Bars and time limits
• Can apply for financial orders
• Children legitimate if born
before nullity order
• 8 grounds (s.12 MCA) / 5
grounds (s.50 CPA)
 Reform of the Law
• Should the law on voidable marriage / civil
partnerships be abolished ? (As in
Australia)
• Is divorce / dissolution a more appropriate
remedy ?
• Consider those with religious objections to
divorce
• Is religious annulment an alternative ?