Section 22 of the Marriage Act (Chapter 280) deals with marriages that are valid until set aside, as distinct from those that are void from the start.
Section 22(2)
(a) either party is incapable of consummating the marriage; or
(b) either party is (i) of unsound mind; or (ii) a mental defective; or
(c) either party is suffering from a venereal disease in a communicable form; or
(d) the wife is pregnant by a person other than the husband.
“Not being a marriage that is void”. Section 22 operates only where section 17 does not. A marriage cannot be both void and voidable.
“At the time of the marriage”. Every ground is assessed as at the date of the ceremony. A condition arising afterwards does not make the marriage voidable — though it may found a ground for dissolution under the Matrimonial Causes Act.
Section 22(1) — “mental defective” defined
“Mental defective” means a person who, owing to an arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, requires oversight, care or control for his own protection or for the protection of others, and is, by reason of that fact, unfitted for the responsibilities of marriage.
1. Arrested or incomplete development of mind, from any cause — inherent, or induced by disease or injury.
2. Requires oversight, care or control for their own protection or that of others.
3. Is, by reason of that fact, unfitted for the responsibilities of marriage.
The third limb is the operative one. The question is not whether a person has an intellectual disability, but whether that condition makes them unfitted for the responsibilities of marriage. Many people with a disability are perfectly capable of those responsibilities, and section 22(2)(b)(ii) does not touch their marriages.
The terminology is that of the 1963 Act and is not language that would be used today. The provision must in any event be read consistently with sections 32, 55 and the Basic Rights in the Constitution.
Note the distinction from section 17(1)(d)(iii), under which a marriage is void where a party is mentally incapable of understanding the nature of the marriage contract. That is about capacity to consent at the moment of the ceremony; section 22(2)(b) is about fitness for the marriage relationship.
Paragraph (a) — incapacity to consummate
Paragraph (a) concerns a party who is incapable of consummating the marriage, at the time of the marriage.
A refusal to consummate is different. Section 21 of the Matrimonial Causes Act makes wilful refusal to consummate a ground for dissolution, not a ground on which the marriage is voidable.
The corresponding provision for a decree of nullity is section 37 of the Matrimonial Causes Act (Chapter 282), which contains detailed rules about incapacity to consummate.
Paragraphs (c) and (d)
| Ground | Requirement | Note |
|---|---|---|
| (c) Venereal disease | Either party suffering from one in a communicable form at the time of the marriage | Applies to either party |
| (d) Pregnancy by another | The wife pregnant by a person other than the husband at the time of the marriage | Applies to the wife only |
Section 38 of the Matrimonial Causes Act imposes restrictions on certain grounds for a decree of nullity. Those restrictions ordinarily require the petitioner to have been ignorant of the facts at the time of the marriage, and to have moved promptly.
The reasoning is straightforward: a person who knew of the pregnancy or the illness and married anyway cannot later complain of it. See decrees of nullity.
How a voidable marriage is set aside
A voidable marriage is a valid marriage until a court sets it aside. The route is a petition for a decree of nullity under section 35 of the Matrimonial Causes Act (Chapter 282), in the National Court.
Section 39 of that Act governs the effect of a decree of nullity of a voidable marriage, and section 36 the institution of proceedings.
Until then the marriage has full effect: the parties are married, children are legitimate, and the ordinary consequences of marriage follow. See the difference between void and voidable.
Section 18(2) separately provides that a marriage solemnized before the commencement date is not voidable on the ground of consanguinity or affinity unless the parties were then within a Schedule 2 degree — see section 23.
Sources
- Marriage Act (Chapter 280) — ss 17, 18, 22, 23
- Matrimonial Causes Act (Chapter 282) — ss 21, 35–39; Constitution — ss 32, 55
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.