The subject to be addressed is on
the concepts of ‘void’ marriage and ‘voidable’ marriage. Is there any practical
value to these concepts due to the fact that divorce can be obtained on the
ground of irretrievable breakdown, without the need to prove fault?
To provide a single definition of
marriage is very difficult. Martha Fineman suggested that it can mean a legal
tie, a symbol of commitment, a cultural phenomenon or even an economic
relationship.[1]
People marry each other for all sorts of reasons whether it be out of
affection, religious or as Hogget et al suggests, ‘if nothing else then
marriage is about the licence to begget children’.[2]
However the most widely accepted legal definition of marriage is ‘the voluntary
union for life of one man and one woman to the exclusion of all others’.[3]
The two ways to end a marriage are
through either divorce or annulment. A divorce releases the parties involved
from all rights and obligations of marriage. However, it is not possible to
petition for divorce until the couple have been married for one year.[4]
Under the Matrimonial Causes Act
1973 the ground for divorce is that the marriage has irretrievably broken down.
In order to prove irretrievable breakdown then one of the following five facts
under s1(2) of the Matrimonial Causes Act 1973 has to be established. They are
either (a) the respondents adultery, (b) the respondents behaviour, (c) the
respondents desertion, (d) two years’ separation with respondents consent to
divorce or (e) five year separation.
An annulment is where by the ‘law
recognises that there has been some flaw in the establishment of the marriage,
rendering it ineffective’.[5]
The two types of annulments are void marriage and a voidable marriage. A void
marriage in the eyes of the law never existed as demonstrated in Gereis v
Yagoub[6]
and a voidable marriage is where a marriage exists until it is annulled by the
courts.[7]
The intention is to discuss the
legal processes involved within the concepts of void and voidable marriage and
discuss the position of children and financial arrangements and seek to
establish whether these two concepts of annulment have any practical value or
should these concepts be abolished.
As previously stated the grounds on
which a marriage is void are those which reflect a public policy objection to
the marriage. These grounds set out in the Matrimonial Causes Act 1973 s(11).
The first ground of the MCA 1973 s11(a)
(i) states that it is not a valid marriage where ‘parties are within the prohibited degrees of relationship’.[8] A parent marrying a child is prohibited; an uncle/aunt
marrying their niece/nephew is prohibited. The same goes for grandparents
marrying their grandchildren. These are
all prohibited.
The grounds of restriction stated in
s11(a)(i)[9]
can most certainly be justified as there is’ fears of genetic dangers involved
in permitting procreation between close blood relations’[10].
If this section of the legislation was not set out as a restriction then the
social and moral reaction would cause widespread condemnation as nearly all
societies in the world have barred marriages between people who are related.[11]
However even if a father is
restricted from marrying his daughter, there is nothing to stop the pair
cohabiting, although if any sexual relationship or activity is undertaken then
that would be a criminal offence of incest.[12]
S11 (a)(ii) states that a person
under the age of 16 cannot marry. This age limit was raised from 12 years old
for a girl and 14 years old for a boy to the age of 16 in 1929.[13]
Arguments were made to make marriages under the age of 16 voidable and not
void. However, these ideas have to be constantly resisted as exploitation of
children could occur, especially young girls.[14]
It is this type of scenario where the concept of void marriage has great
practical value in being able to restrict possible child exploitation.[15]
S11 (a)(iii)[16]
states that a marriage is void when ‘parties have intermarried in disregard of
certain requirements as to the formation of marriage’.[17]
These are formalities such as anyone who objects to the marriage can do so and
there is a formal record of marriage amongst other things.
The danger with this rule is that
whilst public policy requires that these formalities should be strictly
observed,[18]
couples who have the intention of getting married may be discouraged due to the
fact that the formalities may be too onerous.[19]
Also the consequences of voiding any marriage where there may be a slight
technical defect would be socially even more undesirable.[20]
Therefore not all defects will render a marriage void as demonstrated in the
case of MA v JA,[21] but
they will be void if the parties deliberately did not comply with the
formalities or just ignored them completely.
The seriousness of this issue can
be highlighted in Islamic marriage ceremonies undertaken in the UK as many
Muslims, out of ignorance, believe that the Islamic oath (Nikkah) they take is
legally binding when in actual fact it is not recognised as a marriage in the
eyes of the law.[22]
Munby J stated that ‘although we live
in a multi-cultural society, it must not be forgotten that as a secular judge
my concern…is with marriage as a civil contract, not a religious vow’.[23]
This statement shows that people may be too concerned with the religious aspect
of marriage but tend not to realise the legal aspect of marriage.
S11 (b)[24]
states that a marriage is void if at the time of the marriage, either party was
already lawfully married. This is known as bigamy and is a criminal offence. Chris
Barton argues that rather than making bigamy a crime, for which there is little
justification, more checks should be done at the time of the marriage to see if
the parties are free to marry.[25]
In many cultures and religions, polygamy is acceptable. Supporters of polygamy
may suggest that it leads to less divorce rate and a wider family unit to raise
children but supporters of monogamy would argue that it creates division within
the family.[26]
Dr Ghayasuddin Siddiqui, states polygamy in the UK
could be exploited due to the loophole of the Nikah, allowing men to have more
than one wife under Islamic law but not having to register the marriage in the
UK, which means the woman would have no spousal rights if the marriage failed.[27] Therefore as suggested by
Chris Barton, more checks need to be made as England & Wales has a huge multi-cultural
society and if people are using religious loopholes to be polygamous then it
can be said that S11(b)[28] has no practical value to
certain members of society.
S11(c)[29] states that parties must
be respectively male and female. Same sex partnerships are described as civil
partnerships and not as a marriage. However, in late 2012, a publication[30] by the government was
released and in that it was stated that ‘Same-sex couples will be able to have
a civil marriage ceremony in the same way as for opposite sex couples.’[31]
This move to welcome same sex marriages is seen as ground breaking and the government
also goes as far to suggest that ‘we believe that there is strength in the argument
that, once marriage is made available to same-sex couples, religious
organisations should be permitted to conduct such ceremonies if they wish to.’[32] This ruling has many
supporters but has also raised concern especially amongst religious leaders of
various faiths.
What this ruling shows is that the grounds set in MCA
1973 S11 (c) may be of no practical value in the near future as plans to make provisions for the first
weddings are to take place early 2014.[33]
The final ground, s11 (d)[34]
states that a marriage will be void if ‘In the case of a polygamous marriage
entered into outside England & Wales, that either party was , at the time
of the marriage, domiciled in England & Wales’.[35]
There is nothing stopping a person going
to their country of origin, where polygamous marriages are legal, and get
married. However, if one of the parties to the marriage is domiciled in
England, then the marriage will be void.[36]
With regards to children born in a void marriage it
could be suggested that the child is illegitimate as the marriage is void.
However, a child born out of a void marriage is treated as a legitimate child. The
Legitimacy Act 1976, as amended by the Family Law Reform Act 1987, states that
a child of a void marriage should be regarded as the legitimate child of the
parents if at the time of the insemination resulting in the birth, or where
there was no natural insemination, the child's conception, or at the time of
the celebration of the marriage, if later either or both of the parents
reasonably believed to be validly married and the father was domiciled in
England or Wales.[37]
This notion of a child being legitimate from a void marriage has been clarified
in the case of Re Spence.[38]
It can be said that the concept of void marriage is
of great importance as it is a matter of public policy. If any person is
against the circumstances of the marriage, they can seek a declaration of
nullity.[39]
This is fundamental as it gives public the opportunity to voice their concern
on matters such children being exploited[40]
and crimes being committed.
However, as the decision in B v UK[41]
was made, the government made a U-turn and removed a bar preventing
parents-in-law marrying children-in-law
as it interfered with the couples right to marry under article 12 of the ECHR.[42]
Therefore it is possible to suggest that retaining the prohibited degrees of
consanguinity is justifiable due to the fact that it may cause offspring to
have possible genetic defects but retaining the prohibited degrees of affinity
could be in breach of article 12 of the ECHR.[43]
It can also be suggested that with the government approving same sex marriages,
is s11(c)[44]
of any value?
A Voidable marriage is a marriage which is valid
from the date of the marriage up until the court makes an order.[45]
The
grounds set out for voidable marriage are set out in the MCA 1973 s12. The
first two grounds, s12 (a) inability and s12 (b) wilful refusal, both refer to
consummation, an act of sexual intercourse. Historically, the purpose of
marriage was to create life together and control sexual behaviour within
society.[46]
There
only needs to be one act of consummation to make the marriage non voidable.[47]
S12
(a)[48]
states that where a spouse although capable of consummation at the time of the
marriage, was unable to do so after the marriage may be voidable. However if consummation
had taken place on at least one occasion after marriage and the spouse was then
unable to have sexual intercourse, then such spouses would have to apply for a
divorce.[49]
This reflects the crucial distinction between nullity and marriage, nullity
applies when the defects exist at the time of the marriage whilst divorce is
used when defects occur after the marriage.[50]
The argument established here is that the MCA 1973 makes no reference to the
inability existing ‘at the time of the
marriage’ therefore there is a strong
case that the inability can occur at any time, before, during or after
marriage, as long as the parties have not yet consummated.[51]
Seeking a decree would involve detailed
and embarrassing examination of the parties’ lack of sexuality.[52]
Another
outmoded ground is s12 (c)[53]
stating if he respondent was suffering from a venereal disease in a
communicable form. The term ‘venereal disease’ is not defined in the act.[54]
The continued use of the term ‘venereal disease’ is one that is hardly ever
used in medical terms. The preferred term is ‘sexually transmitted disease’.[55]
This ground was introduced in the MCA 1937 as it was thought to be unjust to
bind a person to marriage in this circumstance.[56]
However due to advancement in technology, sexually transmitted diseases can be
cured. (HIV or AIDS do no come into the category of venereal disease as there
are various ways in which HIV infection can be transmitted.[57])
Therefore if curable by medicine, then it is hard to justify the existence of
s12 (c) for grounds of nullity.
It is understandable that prior to 1973,
grounds to annul a marriage would have been of great importance as divorce was
an expensive, embarrassing and stressful experience for the parties involved.[58]
The petitioner would have to provide evidence to support the grounds set in the
petition and even introduce witnesses.[59]
However, the fact that the law on divorce has evolved over the years makes the
concept of voidable marriage even more dysfunctional as since 1977 all
undefended petitions of divorce have been dealt with ‘the special procedure’.[60]
There is no need to prove fault and the parties usually need not be present.[61]
Statistics show that in 1994 the average length of divorce proceedings,(which
is a two stage process consisting of a decree nisi which is pronounced and then
the decree absolute which is declared), was 6.8 months for petitioning wives
and 6.3 months for husbands who petitioned.[62]
These statistics clarify that he law on divorce has evolved from a long winded
process into a short simple procedure, provided no appeal is lodged.
If
annulling a marriage, and the parties have children under the age of 16 (or 19
if in full time education, then the welfare of the children is a serious issue
and arrangements need to be made prior to annulment, however if arrangements
cannot be made between the parties for the children concerned then the
application made to court is the same as the application made for divorce.[63]
If
annulling a marriage and one of the parties decides that they want to make a
financial order against the other, then this process is that same as what one
would do when making a financial order when applying for divorce.[64]
This clearly shows that there is no distinction between annulment and divorce
when it comes to the matter of children and finances.
The
law on divorce has changed over time and people’s attitudes to divorce have
also changed. Combining the
changing attitudes of expectations of marriage, and the greater economic
independence of women,[65] divorce
is the main avenue used to end a marriage amicably.
On the
other hand, it can be argued that divorce is confusing and misleading and it
provokes hostility.[66]
Therefore it can be argued that the annulment categories are still of great
importance to the society of today. Divorce has a stigma attached to it
especially in the Asian community. Divorcing is seen as disrespect to the
family name and women especially are devalued with comments such as their
daughter is ‘socially and psychologically incomplete’.[67]
To save face in the community, annulment
would be the preferred option. The Law commission[68]
supported the retention of voidable marriage arguing that some couples may find
it easier to get an annulment rather than divorce due to religious beliefs.[69]
In
reflection on the points discussed, the category of void marriage is of great
importance and value. It gives the right to the public if they feel concerned
about a particular marriage to seek a declaration for nullity. However, certain
grounds, such as same sex marriages being void, may be of no particular value
in the near future. It can be suggested that reforming categories such as s11(a)
(iii)[70]
may be of value as this ground can be construed as being strict and
discouraging marriage.
Voidable
marriages on the other hand, include grounds that relate to personal problems,
(four out of the six grounds refer to sexual problems or pregnancy). This
concept is also hardly ever used (331 petitions for annulments in 2008)[71]
compared to 121,799 divorces in 2007.[72]
=
Whether
the law of nullity should be retained depends on the social attitudes on of
people on marriage and divorce. Considering all the arguments and statistics
put forward, it can be stated that nullity has little relevance as people
wanting to end marriage can do so by divorce.
[1] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[2]
ibid
[3]
Hyde v Hyde & Woodhouse [2004] EWHC 2808 (Fam)
[4] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[5] ibid
[6] [1997]
1 FLR 854
[] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[8] Matrimonial
Causes Act 1973
[9] Matrimonial
Causes Act 1973
[10] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[11] ibid
[12] ibid
[13] Stone
O, Family Law, 1st Edn (London: The Macmillan Press Limited 1977)
[14]
ibid
[15] ibid
[16]
Matrimonial Causes Act 1973
[17] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[18] Lowe
N & Douglas G, Bromley’s Family Law, 1st Edn (New York: Oxford
University Press 2007)
[19] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[20] Lowe
N & Douglas G, Bromley’s Family Law, 1st Edn (New York: Oxford University
Press 2007)
[21] MA
v JA & the Attorney General [2012] EWHC 2219 (Fam)
[22] http://www.bbc.co.uk/news/uk-england-berkshire-18252958
[23] Sheffield
CC v E & S [2004] EWHC 2808 (Fam)
[24]
Matrimonial Causes Act 1973
[25]
Herring J, Family Law, 5th Edn (London: Pearson Education Limited
2011)
[26] ibid
[27] http://www.bbc.co.uk/news/uk-england-berkshire-18252958
[28] Matrimonial
Causes Act 1973
[29] ibid
[30] http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/consultation-response?view=Binary
[31] ibid
[32] ibid
[33] http://www.telegraph.co.uk/news/politics/9737263/First-gay-weddings-by-2014.html
[34]
Matrimonial Causes Act 1973
[35] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[36] Welstead
M & Edwards S, 3rd Edn (New York: Oxford University Press 2011)
[37] Legitimacy
Act 1976
[38] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[39] ibid
[40] Stone
O, Family Law, 1st Edn (London: The Macmillan Press Limited 1977)
[41] [2005]
3 FCR 353
[42] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[43] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[44]
Matrimonial Causes Act 1973
[45] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[46] Welstead
M & Edwards S, 3rd Edn (New York: Oxford University Press 2011)
[47] P
v P [1964] 3 All ER 29
[48]
Matrimonial Causes Act
[49] Welstead
M & Edwards S, 3rd Edn (New York: Oxford University Press 2011)
[50] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[51] ibid
[52] Welstead
M & Edwards S, 3rd Edn (New York: Oxford University Press 2011)
[53]
Matrimonial Causes Act
[54] Lowe
N & Douglas G, Bromley’s Family Law, 1st Edn (New York: Oxford University
Press 2007)
[55] http://www.news-medical.net/health/What-is-an-STD-(Sexually-Transmitted-Disease).aspx
[56] Lowe
N & Douglas G, Bromley’s Family Law, 1st Edn (New York: Oxford
University Press 2007)
[57] ibid
[58] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[59] ibid
[60] ibid
[61] ibid
[62] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[63] http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d185-eng.pdf
[64] http://www.familylaw.co.uk/system/uploads/attachments/0002/1173/D190.pdf
[65] http://www.parliament.uk/business/publications/research/olympic-britain/housing-and-home-life/split-pairs/
[66] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[67] http://news.bbc.co.uk/1/hi/uk/4669284.stm
[68] Law
Commission Report 33 (1970)
[69] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[70]
Matrimonial Causes Act 1973
[71] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
[72] Herring
J, Family Law, 5th Edn (London: Pearson Education Limited 2011)
