Nullity of Marriage

• Pages: 81-93

CHAPTER 5

NULLITY OF MARRIAGE

1. VOID AND VOIDABLE MARRIAGES: A BRIEF HISTORY

An annulment of a marriage may be effected either by a declaration of nullity of marriage in

cases where the marriage entered into was void, from the inception, and a decree of nullity

where the marriage is deemed to be voidable. The concept of annulment of marriage owes its

origins to the canon law of the Church of England which was administered exclusively by the

ecclesiastical courts of England until the passage of the Matrimonial Causes Act 1857,

England (MCA). With the passage of the MCA 1857, the matrimonial jurisdiction was trans-

ferred to the civil courts. However the canon law principles and rules which underpinned the

annulment of marriages by the ecclesiastical courts were effectively adopted and modified by

the civil courts and, codified in part, by the Nullity of Marriage Act 1971, England and even-

tually entirely codified by the MCA 1973, England.

As such, the grounds on which an annulment were granted by the ecclesiastical courts

remain essentially the grounds on which the courts in the respective CC jurisdictions, under

the relevant matrimonial legislation of these jurisdictions, make, with some variations, a decla-

ration, decree or pronouncement, as the case may be, of nullity of marriage.

2. VOID MARRIAGES

Void marriages, are treated in law, as never having taken place so that technically there is no

need, in such instances, to obtain an annulment of such marriage1but for the avoidance of

doubt, and also so as to provide the necessary and formal basis upon which the court, may in

the exercise of its discretion, make an order, inter alia, for ancillary relief, it is the practice to

apply for and obtain a declaration of nullity. From the time that the declaration of nullity is

made, in the case of void marriages, absent the statutory interventions examined below, a void

marriage is deemed to have never taken place with all the legal consequences which flow from

that status.

3. VOIDABLE MARRIAGES

Voidable marriages are marriages which are not void ab initio in that such marriages are valid

when entered into but may be rendered void. A voidable marriage may be rendered void by

one of the parties applying to a court of competent jurisdiction to set aside the mar riage by a

pronouncement or decree of nullity on specified grounds, or otherwise, the marriage is deemed

to be valid and remains valid and subsisting until pronounced against by a decree of nullity.

In the case of voidable marriages, it is to be noted that the former position was that once

the decree was made, the parties were treated as never having been married which as discussed

below, led to harsh legal consequences. However with the passage of the Nullity Act 1971,

1 The matrimonial legislation of Jamaica – s.4(3), MCA, 1989), St Lucia – s.13(3), Divorce Act Cap.4.03, and

St Kitts and Nevis – s.8(3), Divorce Act Cap.12.03 provides in effect that nothing shall be construed as vali-

dating a marriage which is by law void but, with respect to which a decree of nullity has not been granted.