Q&A Family Law

Rachael Stretch

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317570738
• Edition: 8
• Topic: Droit
• Subtopic: Théorie et pratique du droit

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1 Nullity of Marriage

DOI: 10.4324/9781315737669-2

Introduction

Many family law syllabuses begin by looking at the relationships between adults and in particular at the law surrounding marriage. This chapter will set out the law on who is able to marry and what makes a marriage void or voidable. This is an area that has undergone considerable change in recent years. Whereas once marriage was the preserve of the heterosexual couple, it is now possible for transsexuals to marry in their acquired gender (Gender Recognition Act 2004) and gay and lesbian marriages are now legally valid (Marriage (Same Sex Couples) Act 2013 s 1(1)).

Checklist

Students need to be familiar with the following areas:

• The effect of a marriage being declared void or voidable and the difference between a void marriage and a sham marriage (El Gamal v Al Maktoum (2011), Assad v Kurter (2013), Hudson v Leigh (2008)).
• The reasons why a marriage will be void under Matrimonial Causes Act 1973 s 11.
• Corbett v Corbett (1971), the subsequent case law on marriage and transsexuals and the effect of the Gender Recognition Act 2004.
• The legal recognition of homosexual and lesbian relationships through the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013. The fact that civil partnerships are not available for heterosexual couples – Ferguson and Others v UK (2011).
• The effect of a marriage being voidable under the Matrimonial Causes Act 1973 s 12 and the reasons why a marriage might be declared voidable including the development of s 12 by the Gender Recognition Act 2004.
• The case law relating to duress and whether an objective or subjective test should be used (Singh v Singh (1971), Hirani v Hirani (1982)).
• Matrimonial Causes Act 1973 s 13 and the bars on a claim under the Matrimonial Causes Act 1973 s 12.
• The reasons why a civil partnership will be void or voidable and how these compare to the nullity of marriage (Civil Partnership Act 2004 s 49 and s 50).

Up for Debate

The nature of marriage and who is allowed to marry is a fertile area for debate. This usually focuses on the extent to which English law on marriage currently reflects, or should reflect, the traditional view that marriage is one man to one woman for life.

The following issues are likely therefore to be relevant:

• ❖ Was the Marriage (Same Sex Couples) Act 2013 needed, or would the Civil Partnership Act 2004 be sufficient? (Wilkinson v Kitzinger (2006))
• ❖ Is the law justified that the only way for a heterosexual couple to legalise their relationship is through marriage? (Ferguson and Others v UK (2011))
• ❖ Is the approach taken by the Gender Recognition Act 2004 justified in not requiring medical treatment or surgery for gender recognition?
• ❖ In a pluralistic society, should there be greater legal recognition of actually polygamous marriages?

Exam Questions

Exam questions on nullity are likely to take the form of either a problem question asking the student to identify whether a marriage can be ended because of nullity and if so under which ground, or an essay question exploring the role of nullity in today's society. Nullity can also be combined with divorce or with financial relief in problem questions.

Question 1

Jane, an Englishwoman, went to Ruritania to work, and there she met and married Fred, a Ruritanian man with whom she had fallen in love. He told her that although the law of his country allowed him to take more than one wife, he felt that she was so special he would never do so. After a few months Jane tired of his adoring, but boring, company and decided to return home. She soon forgot about Fred and began to form a relationship with Tarzan, who had been briefly married to Jane's mother. Jane's mother had died two years previously and shortly after meeting, Jane and Tarzan married. However, after the ceremony Jane could not bring herself to have sexual intercourse with Tarzan, as she is tormented by the thought of his relationship with her mother.

◗ Advise Jane on the validity of her marriage.

How to Read this Question

The question is whether Jane's marriage to her latest husband, Tarzan, is valid. In order to determine this, it is crucial to decide whether she is married to Fred and therefore both Jane's marriages as well as the impact of the marriage between Jane's mother and Tarzan will need to be considered.

How to Answer this Question

Begin by examining the validity of the marriage to Fred before discussing whether Jane is validly married to Tarzan.

Applying the Law

Answer

In advising Jane on the validity of her marriages, it will be necessary to first examine the marriage to Fred, which took place in Ruritania. For this marriage to be valid, both parties must have had capacity to marry and the relevant formalities must have been complied with.

Capacity in English law is determined by the prospective spouses' ante-nuptial domicile – Sottomayer v de Barros (No 1) (1877). Fred was domiciled in Ruritania. Ruritania was clearly his permanent home: Whicker v Hume (1858). Thus Fred would seem to have capacity to marry Jane, although it is arguable whether Jane had capacity to marry Fred. She begins with an English domicile; however, when she goes to Ruritania to work, she may have obtained a Ruritanian domicile of choice. To establish this, it would be necessary for her to have made Ruritania her permanent home, that is, established a physical presence of a lasting nature, with an intention to make it her permanent home. In going to Ruritania to work, Jane's intentions are not clear. If she intended this as a temporary or transient measure, then there is insufficient determination to acquire a domicile of choice; however, if on meeting Fred, Jane decides that she should settle in Ruritania then she may have acquired a Ruritanian domicile of choice. If Jane is domiciled in Ruritania at the time of her marriage to Fred then she will also have capacity to marry, notwithstanding the potentially polygamous nature of the marriage, as Ruritanian law allows polygamy.

There is, however, a strong possibility that Jane was still domiciled in England at the time of her marriage to Fred, in which case her capacity must be judged according to English law. Crucially, the problem for the marriage between Fred and Jane is whether it is void for being polygamous (Matrimonial Causes Act (MCA) 1973 s 11(d)). In this case the marriage is not actually polygamous, but it has the potential, given Fred's domicile, to become polygamous. In Hussain v Hussain (1982) a marriage between a man and a woman in Pakistan which permitted polygamy was nevertheless held to be valid, as the woman had the Pakistani domicile and could not take a second husband, and the man had an English domicile and could not take a second wife, thereby rendering the marriage monogamous. This would not apply to the marriage between Jane and Fred, as the roles are reversed and Fred could still, in theory, take another spouse. Thus the marriage between Jane and Fred, whilst not actually polygamous, is potentially so. Until the provisions of the Private International Law (Miscellaneous Provisions) Act 1995 (PIL(MP)A) came into force in 1996, the MCA 1973 s 11(d) had the effect of making a potentially polygamous marriage by an English domiciliary void. This somewhat discriminatory rule was the subject of criticism by the Law Commission in their report on polygamous marriages, which thought that the rule as relating to potentially polygamous marriages was harsh. Accordingly the PIL(MP)A 1995 s 5 amended s 11(d) to make marriages that were only potentially polygamous valid. The Act has retrospective effect, s 6(1), but it does not retrospectively validate a potentially polygamous marriage if a party to that marriage has gone on to celebrate a later valid marriage, s 6(2). ¹

1 Good answers will not merely state that a marriage cannot be polygamous under English Law but will apply this rule to the facts and explain what this means. In particular, it is important that the student is aware of the potentially discriminatory effect of s 11(d) and therefore can understand and explain the reason for the PIL(MP)A 1995.

Jane's marriage to Fred is, however, unhappy and she begins a relationship with Tarzan whom she later marries. The next issue therefore is what legal status, if any, this marriage to Tarzan has. First, if the marriage between Jane and Fred is valid, which it appears to be, then the marriage between Jane and Tarzan is void (MCA 1973 s 11(b)). Even though the marriage between Jane and Tarzan would be void as she is already validly married, this answer will consider whether there are any other issues which would make this marriage invalid.

One potential problem is that for a short while Tarzan was married to Jane's mother. There would be an absolute prohibition on Jane marrying Tarzan if he were her natural or adoptive father; likewise if she had at any stage been a child of the family whilst Tarzan was married to her mother: Marriage Act 1949 Sched 1. However, if Jane had never been treated by Tarzan as a child of the family and Tarzan's relationship with Jane's mother had occurred when Jane was no longer living at home, then provided that Tarzan and Jane are both over 21 they will be able to marry: Marriage (Prohibited Degrees) Act 1996. ²

2 The concern with step-parent/stepchild relationships is that the step-parent might have groomed the stepchild and the relationship might be abusive. This explains why the ban on step-parent/stepchild relationships only applies if the step-parent has been in a parental position to the stepchild.

There are possible grounds for arguing that the marriage between Jane and Tarzan is voidable for one of the reasons in the MCA s 12. It does not seem that the marriage has been consummated. Jane's attitude has ensured that there has been no complete and regular intercourse (D v A (1845)) once the marriage has taken place. Premarital intercourse does not suffice for consummation. It is then necessary to consider whether this is due to incapacity to consummate or wilful refusal.

Either party can petition on the basis that there is some physical or psychological reason preventing consummation (D v D (1982)). Here it would seem that Jane has psychological problems that are preventing intercourse. In order for the decree to be granted these reasons must exist at the date of the petition and the date of the hearing (Napier v Napier (1915)), but there must also be no practical possibility of intercourse (S v S (1962)). In this case it is not clear what, if anything at all, can be done to help Jane; neither is it apparent whether she wishes to be helped to overcome the problem. If it is felt that there is a possibility of intercourse should Jane accept help which would not expose her to too great a risk, then Jane's refusal to seek such assistance may amount to a wilful refusal to consummate. This would be a settled and definite decision without just cause (Horton v Horton (1947)), and would give Tarzan the opportunity to petition for nullity. ³

3 A spouse can petition for non-consummation on the basis of their own incapacity to consummate, but not on the basis of their own refusal to consummate.

A voidable marriage is valid unless and until it is dissolved by way of nullity decree (De Renville v De Renville (1948)), unlike the void marriage. Therefore, Jane should seek a nullity decree in respect of her marriage to Tarzan.

Question 2

Kate was a journalist covering a civil war in the depths of Africa. There she met a fellow English journalist, Leo, with whom she fell instantly and madly in love. They wanted to marry but were in the midst of heavy fighting and were unable to make the journey to the nearest city. They exchanged marriage vows in front of Mike, a missionary who was hoping to become a priest. Both Kate and Leo were captured by rival factions in the civil war, and Kate assumed Leo had been killed when she did not hear from him again. Kate met another journalist, Nick, in the prisoner of war camp within which she was held and, finding she was pregnant by Leo, agreed to marry Nick so that her child would have a father. The marriage was intended by both as a companionship only relationship, as neither wished to have intercourse with the other. After Kate's baby was born, Nick found he looked on Kate with increasing af...