The question focuses on nullity and whether Cara and Ben’s marriage can be annulled. S11- s13 of the Matrimonial Causes Act 19731 focuses on nullity. Nullity is void or voidable marriages; it is an alternative way of ending a marriage other than divorce. Void marriage has some semblance of a marriage, there is, in fact, a fundamental flaw in the marriage which means that it is not recognised in the law as valid.2 A voidable marriage exists until it has been annulled by the courts, if it is not annulled by courts then it will be treated as valid.3They consolidate the substantive reforms instituted by the Nullity of Marriage Act 1971.4
Non-Marriage was seen in the case of Hudson v Leigh5 in South Africa, but it broke down and the Court said it is a non-marriage. However, Bodey J set out a list of factors indicating whether a marriage was a non-marriage or avoid marriage as there was no reference to the word lawful or lawfully married to the marriage ceremony. Mr. Bodey J had discovered that it was play acting and therefore there was no ceremony so it was regarded as a non-marriage and not void marriage.
It is necessary to draw a distinction between marriages void ab initio meaning never existed at law and those which are voidable. In De Reneville6 Lord Greene MR stated that ‘A void marriage is one that will be regarded as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it; voidable marriages is one that will be regarded as valid until any decree annulling it has been pronounced.7
Void grounds are set out in s11 and the voidable in s12 of the Matrimonial Causes Act 1973. S11 (a) (i) provides that it is not a valid marriage under the provisions where the parties are within the prohibited degrees found in s1 of the Marriage Act 19498 of blood relationships, for example, a man cannot marry his mother or daughter and a woman cannot marry her father or brother but cousins can marry each other, but it does state in a debate that it could cause genetic disorders and society views. It does not state in the scenario how closely related Cara and Ben were. S11 (a) (ii) either party is under the age of sixteen, or the parties have intermarried in disregard of certain requirements as to the formation of marriage.9
In the given facts Cara was born in 2001 which does not explain if the marriage took place when Cara was sixteen or under, but if Cara was under sixteen the marriage will be void as parties are too young to understand the consequences of marriage. If Cara was between the ages of sixteen to seventeen under s3 of the Marriage Act 194910 it was necessary for Cara to have a written consent from her mother Amy who is a responsible parent of Cara. It does not state if Amy had written consent because she had planned the wedding ceremony for Cara and Ben as she wanted Cara to marry Ben. Even if Cara did not have a parental consent, it won’t make the marriage void if the consent is not obtained but the registrar can refuse to marry them under s2 of the Marriage Act 1949. Assumingly Ben could be over the age of sixteen as he was training to be a solicitor as stated in the scenario but for Cara, it does say she was born in 2001 and does not state whether she got married before or at sixteen years of age.
S11 (a) (iii) a marriage will be void where the parties marry each other with the knowledge that they are defective formalities. This was seen in the case of Gereis v Yacoub11 where they knew it was not a licensed wedding venue and so the marriage was void as they had ‘knowingly and wilfully’ failed to comply within the legal formalities. Whereas for Cara and Ben their ceremony took place in a local registry office so, therefore, their wedding may be considered valid or licensed under s25 of the Marriage Act 1949. A registrar was present at the time of Cara and Ben’s ceremony so their marriage was valid. The registrar had misread his watch and the ceremony took place at 7pm so Cara and Ben’s marriage will not be void on the basis of the time of their ceremony, as the times have changed from 8am-6pm to anytime with two witnesses but there is no evidence of that. If they had witnesses then it is valid if they did not have witnesses then it may make their marriage harder to document as signatures are needed. A registrar must have a registration certificate and the ceremony should take place in a licensed building.
S11 (b) of the Marriage Causes Act Neither party must already be married, as there is no evidence of that, so, therefore, their marriage may not be void unless Cara and Ben were under sixteen at the time of their marriage. Cara had not been married before as she had a boyfriend named Joe.
The grounds for voidable marriages are set out in s12 of the Matrimonial Causes Act 1973. The marriage would be valid unless the party’s themselves take action. This means it is valid until there is a decree of nullity under s12 of the Matrimonial Causes Act 1973. S12 (1) (a) provides that a marriage has not been consummated owing to the incapacity of either party to consummate. Dredge v Dredge12defined the word consummation and it was held that one act of intercourse after the marriage was enough. Consummation takes place after the marriage not before, it is defined in the case of D-E v A-G13 that ‘intercourse which is ordinary and complete and not partial and imperfect’14 this definition means that a husband must be able to maintain an erection and there must be full penetration.
In the case of Cara and Ben, they did not have any intercourse as after their ceremony they were involved in a car crash where Ben’s injuries left him impotent. It does not state in the given facts if Ben’s injuries were physiological or psychological. This is explained in canon law that impotence could be relied upon only if the impotence existed at the time of marriage. Inability can occur at any time before or during the marriage as long as the union has not yet been consummated.15 Ben’s injuries occurred during the marriage, and/so nullity is applied when defects exist at the time of marriage.
S12 (b) of the MCA 1973 provides that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it. A spouse may not petition on the ground of their own refusal, unlike where a party can petition on the basis of their own incapacity. In the case of Horton v Horton16 it was held that wilful refusal has two parts that a settled and a definite decision come to without just excuse or without just cause. There must be a settled definite decision which is a question of fact and the history of marriage will be investigated. If consummation is impossible because the parties are apart or there is no opportunity to consummate. If one party makes it clear that they won’t consummate the marriage then it will be a wilful refusal.
A definite decision was seen in the case of Ford v Ford17where the marriage took place in a prison where it was held that a decree was granted due to wilful refusal because he showed no intention of pursuing a married life with his wife out of prison.
Ben can put through an application for nullity and rely on his own inability to consummate but not on his own wilful refusal. As Ben had suffered impotent injuries he can void the marriage on that basis. However, Cara can also petition on the grounds that because of Ben’s injuries she cannot consummate so, therefore, she can void the marriage as consummation needs to be ordinary and complete and not partial and imperfect.
If Ben’s injury is curable by an operation but it is dangerous and is unsuccessful and Cara refuses to go ahead with it, then it will be deemed as incurable as illustrated in the case of S v S.18 If there is an operation and it will be successful but Cara refuses, in the law, it will be viewed as wilful refusal to consummate rather than incapacity.
S12 (c) of the MCA 1973 provides that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise. Cara’s mother had insisted on Cara marrying her cousin, but Cara did not voluntarily consent to the marriage which could result in the marriage being voidable because of Amy’s use of words that may amount to duress that if she did not marry her cousin she would leave her penniless. This was illustrated in the case of Szechter19 it was held that there must be a reasonably held fear caused by threat for which the party himself is not responsible. In this case, there was an objective test which changed to a subjective test in the case of Hirani20 the questions were whether the threats or pressure would destroy the reality of consent and overbear the will of the individual21 such as no money or thrown out the house would amount to duress. For Cara there was lack of consent as she was scared at the time as she discovered she was pregnant with Joe’s baby. Cara could have petitioned for nullity on the ground of lack of consent owing to duress as the Court of Appeal in the case of Hirani found that the petitioners will have been clearly overborne by parental pressure and it held that she had not consented to the marriage and was entitled to have the marriage annulled. Cara was forced into this marriage as there was no true consent and there was duress involved as mentioned above. It could be that Cara was forced into this marriage with Ben as she was threatened by her mother Amy and Cara could be entitled to annul her marriage. Cara had not validly consented to marry Ben as her consent could have been vitiated by emotional force as seen in the judgement by Coleridge J in the case of P.22
S12 (d) of the MCA 1973 that at the time of the marriage either party, though capable of giving a valid consent, was suffering from mental disorder and (e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form. This ties in with the non-consummation grounds as it looks upon as the impediment to a sexual intercourse.23 (g) That an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage. The marriage will be void if the Gender recognition certificate is issued after the marriage. (h) That a respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.24 A marriage will be voidable if the respondent did not tell the person he/she was marrying was of another gender before and that person had obtained a gender recognition certificate.25These 4 grounds of s12 of the MCA 1973 are not relevant with the given scenario as there is no evidence that Cara or Ben had any mental disorders or disease and there is no evidence of gender recognition.
If Cara tells Ben that she is pregnant with Joe’s baby, s12 (f) will be considered and Ben will be given the grounds for nullity if Ben can prove that Cara was pregnant at the time of their marriage by someone else other than him. Ben can seek an annulment if Cara tells him that she was pregnant at the time of their marriage with Joe. Matrimonial Marriage Act states that a petition must be presented within three years of the marriage, if Cara keeps Joe a secret for more than three years then her marriage with Ben cannot be annulled on this ground.
If a marriage is voidable under s12 then the respondent may be able to use one of the bars to prevent the annulment. There are three bars that could prevent a marriage being annulled under S13 of the Matrimonial Act. Approbation is knowledge, conduct, and injustice. S13 (1) states that a Court shall not grant a decree on the ground that the marriage is voidable.
Knowledge, conduct, and injustice are defined that the petitioner knew that he/she could have the marriage annulled and that the petitioner behaved in such a way to make the respondent think that he/she would not petition for annulment and it would be unjust to the respondent if the decree was granted.
(a)If the court is satisfied because of the respondent and the petitioner wishes to have the marriage annulled. A general bar based on approbation by the petitioner applies to all nullity petitions brought on the basis that a marriage is voidable, then the courts must not grant a decree if the respondent proves that a petitioner knew that it was open to him/her to have the marriage annulled but led them to believe that he would not do so and (b) That it would be unjust to the correspondent to grant the decree. In D26 the husband bought a nullity petition on the basis of the wife’s wilful refusal to consummate. The petitioner has misled the respondent into thinking that she is going to stay in the marriage27 as she got into the marriage because of duress.
Lapse of time only applies to certain grounds and can only bring proceedings within 3 years of the marriage. S13 (2) MCA for a decree based on pregnancy by another could not be petitioned as Ben does not know that Cara is pregnant with someone else’s baby unless she decides to tell him as there is no evidence of that. Cara cannot bring a proceeding for annulment of the marriage because she cannot petition for herself. There would be a bar to petitioner’s knowledge if only Ben knew that Cara was pregnant at the time of the ceremony. It does not state in the scenario the time between Cara and Ben getting married and wanting an annulment, as Cara can only bring a proceeding within 3 years of their marriage, so, therefore, it is difficult to bring a proceeding /petition on the grounds of S12.
1 Matrimonial Causes Act 1973
2 Herring, J. (2017). Family law. Harlow, United Kingdom: Pearson.
3 Herring, J. (2017). Family law. Harlow, United Kingdom: Pearson.
4 Nullity of Marriage Act 1971
5 Hudson v Leigh 2009 EWHC 1306
6 De Reneville v De Reneville 1948
7 Ruth Gaffney-Rhys (2013) Family Law Q, Oxford University Press:.
8 Marriage Act 1949 as amended by Marriage (Prohibited Degrees of Relationship) Act 1986
11 Gereis v Yaqoub 1997 1 FLR 854
12 Dredge v Dredge 1949
13 D-E v A-G 1845 1 Rob Eccl 279
14 W (otherwise K) v W 1967 1 WLR 1554
15 Herring, J. (2017). Family law. Harlow, United Kingdom: Pearson.
16 Horton v Horton 1947
17 Ford v Ford 1987
18 S v S 1955 P 1.
19 Szechter v Szechter 1970 3 ALL ER 905
20 Hirani v Hirani 1982
21 Hayes and Williams Family Law Oxford University Press, 2014
22 P v R (Forced Marriage: Annulment) 2003 1FLR 661
23 Hayes and Williams Family Law Oxford University Press, 2014
25 Hayes and Williams Family Law Oxford University Press, 2014
26 D v D 1979 Fam 70
27 S13 Matrimonial Causes Act 1973.