The Marriage Act (Chapter 280) deals with both in Part IV: section 17 for void marriages, section 22 for voidable ones. The consequences differ substantially.
The comparison
| Void — s 17 | Voidable — s 22 | |
|---|---|---|
| Status | Never a marriage. No legal effect at any time | A valid marriage until set aside |
| Court order needed? | No — the marriage is void whether or not a court says so | Yes — only a court can end it |
| Who can raise it | Anyone with a legitimate interest — including third parties and after the death of a party | The parties, by petition |
| When | At any time, including in other proceedings | While both parties live, subject to the restrictions in s 38 of the Matrimonial Causes Act |
| If nobody acts | Still void | Remains a valid marriage |
| Remarriage | Free to remarry — but a decree is prudent as proof | Must obtain a decree first; otherwise the second marriage is void and is bigamy |
| Grounds | Existing 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 |
Why a void marriage needs no order
Section 17 says a marriage “is void” on the stated grounds. It operates by force of the section itself.
So the invalidity can be raised anywhere it matters: in a probate dispute, in a claim to superannuation, in a maintenance application, in a prosecution for bigamy, or by a third party asserting an inconsistent right.
It can be raised after one or both parties have died, which is when it most often arises — a second “wife” claiming an estate where the first marriage subsisted.
A decree of nullity under section 35 of the Matrimonial Causes Act (Chapter 282) produces an authoritative record.
Without one, a person who remarries relying on the first marriage being void takes the risk that a court will later disagree — in which case the second marriage is void and bigamy has been committed.
A decree also opens the door to ancillary relief: maintenance, custody and settlement of property under Part VII of that Act.
Why a voidable marriage is different
A voidable marriage produces every normal consequence of marriage: the parties are spouses, the children are legitimate, property and succession rights operate, and a further marriage would be bigamous.
Only a decree of nullity changes that, and section 39 of the Matrimonial Causes Act governs the effect of a decree of nullity of a voidable marriage.
Each section 22 ground concerns a matter between the spouses: consummation, mental fitness for marriage, disease, and the paternity of a pregnancy. They are matters the parties may choose to overlook.
That is why only the parties may petition, and why section 38 of the Matrimonial Causes Act restricts the grounds — in general requiring the petitioner to have been ignorant of the facts at the time of the marriage and to have acted promptly.
A spouse who knew of the condition and married anyway, or who lived with the other for years afterwards, will not be permitted to rely on it.
The position of children
Section 54 of the Marriage Act deals with the legitimacy of children of certain void marriages, and section 2 of the Matrimonial Causes Act deals with the application of that Act in relation to certain children.
Independently of legitimacy, the Lukautim Pikinini Act 2015 operates on parental responsibility and the duty to maintain a child regardless of the parents’ marital status, and the Family Court may make parenting orders and maintenance orders.
Working out which applies
- Check section 17 first. Section 22 applies only to a marriage “not being a marriage that is void”.
- Check the exceptions. Section 17(1) is subject to section 17(2) and to sections 20 and 21 — a Judge’s permission removes the prohibited-degrees ground.
- Check the date. Section 23 preserves the validity or invalidity of marriages before 21 January 1965, and applies the common law rules of private international law where appropriate.
- Then consider the remedy. Both void and voidable marriages are dealt with by a decree of nullity under section 35 of the Matrimonial Causes Act.
Sources
- Marriage Act (Chapter 280) — ss 17–24, 54, 57
- Matrimonial Causes Act (Chapter 282) — ss 2, 35–39, 72–79; Lukautim Pikinini Act 2015
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.