Best of the Transparent Hummingbird
Family Law for Grandmama, Note 1:
Nullity — because that is the case I have on hands.
There are two kinds of two kinds of marriages can be annulled: void marriages, and voidable marriages. You have to get the difference right, because the legal effect, on yourself, your dependents and third parties — the rules governing are different, including time restrictions, ancillary orders (under the law of voidable marriages you can have maintenance payments even for an annulled marriage
You have a void marriage if, at the time you contracted the marriage, there was some fundamental defect in its formation. This defect can be related either to formalities of the marriage or to your incapacity to contract a marriage.
An example of a formal defect is if you did not have a valid marriage licence or if, say, the person who performed your marriage turns out not to be a bona fide licensed marriage solemniser but is actually an actor or a defrocked clergyman or something (I’m suddenly thinking of the ‘Solitary Cyclist.’) In other words, there is some procedural irregularity in the way the marriage was attempted so that it had no effect.
An example of incapacity would be if you were below the legal age of marriage, or you were both of the same sex trying to marry under a heterosexual marriage law, or the classic example: if you already have a subsisting marriage (Mr Rochester.) In these cases there is a legal impediment in connection to some attribute of your person, so that you did not have capacity to marry.
The effect of both types of fundamental defect is that your marriage is void ab initio. Your ‘marriage’ never existed at any point in time because it was never validly formed in the first place. Strictly speaking you do not have to seek a court declaration — once the fact finding is complete,
What you’ve got is a voidable marriage if the marriage was perfectly validly formed (there was no non-compliance with formalities and neither party suffered from a legal disability to contract the marriage) but something else arises or emerges that fundamentally changes the nature of the contract, so much that if the parties wish, they may choose to have the marriage annulled.
The grounds for annulling a marriage however are controversial Most of them were adopted into the Women’s Charter from English law and reflect an Anglo-Catholic mindset. The new ones (also adapted from legislative changesi n modern UK) are problematic to me
for example, inability to consummate a marriage (impotence) is a voidable ground. but if parties are happy to continue in a sexless marriage, that is their freedom to do so. the marriage is voidable but not void, it continues to be valid unless annulled. no busybody third party could seek a declaration that the marriage is voidable just because you were incapable of
your marriage is valid and remains valid until the date of annulment. (this difference is important because a child born of a voidable marriage is legitimate but a child born of a void marriage is not.) nullity is cheaper than divorce, no ancilliary matters, less stigma compared to divoce
for example, inability of the parties to consummate (impotence) or refusal to consummate the marriage. either of the parties then could seek a judgment of nullity if they so wish.
only the parties
parties which have been m
my take on the law of voidable marriages is that the whole section should be purged from the women’s charter. nullity should be reserved for void marriages You should also know that if what you’ve got is a void marriage, it is not only you or your “spouse” who can seek a judgment of nullity. a third party may also seek a declaration that your marriage is null and void, provided they can prove some interest (i.e. they have locus standi) — say, if you were the angry parent of a 14 year old who had secretly married her boyfriend, or the first wife of the bigamous man. (potentially even a ‘concerned member of the public’ could have locus standi on public policy grounds.)