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Void and voidable marriages

It is estimated that about a million weddings are legally invalid because vicars use the wrong choice of words. This is just one way in which a marriage may be declared invalid, what are the others?

Four conditions

There have to be four conditions present in a marriage

  1. It has to be voluntary and there are rules protecting those who are being forced to enter a marriage without their free will.
  2. It must be for life. Though the marriage may not last, the parties do have to at least intend for it to be for life when they enter into it.
  3. They must be a man and a woman.
  4. They must not already be married.

Marriages which are not valid are described as void or voidable and the parties to them can obtain a decree of nullity to end the marriage

Void marriages

To show that a marriage is void a person must prove one of the following:

  • That at the time of the wedding ceremony, there was a lack of capacity from one of the parties to the marriage, meaning that they were not capable of entering into a binding contract. This could apply to those who were already married or who were closely related to each other or not of the opposite sex. In all these cases it can be argued that at least one of those in the marriage ceremony had a lack of capacity to marry.
  • The formal requirements for a marriage ceremony were not followed. The remark above about vicars choosing the wrong words would fall into this category.
  • There was a lack of consent at the time of the marriage. So one of the parties to the marriage did not give free and fully informed consent for reasons including duress, mistake, misrepresentation or fraud. There can also be a lack of consent because one of the parties was suffering from a mental illness or was intoxicated.

Voidable marriages

To prove that a marriage is voidable a person must prove one of the following:

  • At the time of the ceremony one of the parties was unable to consummate the marriage. This can’t be down to the person being infertile or not wanting to consummate. The person has to be incapable of sexual intercourse.
  • At the time of the ceremony either party is incapable of entering into and sustaining a proper or normal marriage relationship. This may be due to a personality disorder, a psychiatric illness or possibly the sexual orientation of one of the parties.

Unlike in divorce where the party wanting to divorce would have to wait at least a year to apply, for an annulment a party may apply any time after the marriage by filling in a nullity petition.