Division 2 of Part V of the Matrimonial Causes Act (Chapter 282) provides the remedy for a marriage that should not have happened.
Section 35
A petition for a decree of nullity of marriage may be based on the ground that the marriage is void, or on the ground that the marriage is voidable at the suit of the petitioner.
| Void — Marriage Act s 17 | Voidable — Marriage Act s 22 | |
|---|---|---|
| Grounds | Existing lawful marriage; prohibited degrees; defective form; no real consent; under marriageable age | Incapacity to consummate; unsoundness of mind or mental defectiveness; communicable venereal disease; wife pregnant by another |
| Status before decree | Never a marriage | A valid marriage |
| Who may petition | A party to the purported marriage | Restricted by s 36 |
| Restrictions | — | ss 37, 38 |
See the difference between void and voidable for what turns on the distinction.
Section 36 — who may not petition
(a) on the ground of incapacity to consummate — on the petition of the party suffering from the incapacity, unless he was not aware of the existence of the incapacity at the time of the marriage;
(b) on the ground that a party was, at the time of the marriage, of unsound mind or a mental defective, or suffering from a venereal disease in a communicable form — on the petition of the party suffering from the disability or disease;
(c) on the ground that the wife was pregnant by a person other than the husband — on the petition of the wife.
Each restriction prevents a party from petitioning on a ground constituted by their own disability, disease or pregnancy. The voidable grounds exist to protect the party who was not affected and did not know.
Paragraph (a) contains the one exception: a party may petition on their own incapacity to consummate if they were not aware of it at the time of the marriage. That is a fair qualification — a person who discovers an incapacity after marrying is in the same position as their spouse.
Section 37 — incapacity to consummate
A decree shall not be made unless the Court is satisfied that the incapacity also existed at the time when the hearing commenced and that —
(a) the incapacity is not curable; or
(b) the respondent refuses to submit to such medical examination as the Court thinks necessary to determine whether it is curable; or
(c) the respondent refuses to submit to proper treatment for the purpose of curing it.
A decree shall not be made where the Court is of opinion that, by reason of — (a)(i) the petitioner’s knowledge of the incapacity at the time of the marriage; or (ii) the conduct of the petitioner since the marriage; or (iii) the lapse of time; or (b) for any other reason — it would be harsh and oppressive to the respondent, or contrary to the public interest, to make a decree.
The structure is protective of the respondent. A curable condition that the respondent is willing to have treated does not entitle the petitioner to a decree; and a petitioner who knew, or who delayed, may be refused. See incapacity to consummate.
Section 38 — restrictions on the other voidable grounds
(a) the petitioner was, at the time of the marriage, ignorant of the facts constituting the ground; and
(b) the petition was filed not later than 12 months after the date of the marriage; and
(c) marital intercourse has not taken place with the consent of the petitioner since the petitioner discovered the existence of the facts constituting the ground.
The conditions are cumulative. A petitioner who knew of the pregnancy or the illness before the marriage is out; so is one who continued the relationship after discovering it; so is one who files on day 366.
Twelve months from the date of the marriage — not from discovery. Where the facts are discovered late in the first year, the petitioner must move quickly.
A party outside these limits is not without remedy: the same matters may found a petition for dissolution — and note that section 31(3) allows a petition on adultery within three years without leave.
Section 39 — the effect of the decree
(1) A decree of nullity of a voidable marriage annuls the marriage from and including the date on which the decree becomes absolute.
(2) Such a decree does not make illegitimate a child of the parties born since, or legitimated by or during, the marriage.
A voidable marriage is annulled prospectively. It was a valid marriage until the decree became absolute. So everything done during it — property dealings, succession rights that vested, the legitimacy of children — stands.
Children are expressly protected. Section 39(2) puts the matter beyond doubt for a voidable marriage. For a void marriage, the equivalent protection is section 54 of the Marriage Act, and section 2(3) of this Act applies the “children of the marriage” provisions to a void purported marriage as if it were a marriage.
The Part VII powers over maintenance, custody and settlement of property are available in nullity proceedings, because a petition for nullity is a matrimonial cause.
Where both a nullity petition and a dissolution petition are before the Court, section 30 requires the Court to determine the nullity petition first: it shall not make a decree of dissolution unless it has dismissed the petition for nullity.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 30, 31, 35–39, 72–79
- Marriage Act (Chapter 280) — ss 17, 22, 54
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.