Family Law and marriages

Family Law

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Family law

With the option of divorce becoming socially acceptable and the most preferred way of terminating marriages, the law of nullity has been attacked as lacking any practical value in modern family law. To some, the law should be abolished and its position taken up by the more advanced divorce laws. However, to others, as the Law Reform Commission observed in its review, the law of nullity still has significance to religious groups who differentiate between nullity and divorce and those who attach a moral value to the termination of a marriage. It is important therefore to recognise that there is a difference between a marriage that ends in annulment and one that ends in divorce. Annulment means that there was no marriage in the first place whereas divorce recognises that a valid marriage existed. The English law, Matrimonial Causes Act 1973, establishes the grounds on which a marriage can be declared null and void. The conditions for a valid marriage are laid down in the Marriage Act 1994.

The decree of nullity revolves around the concept of void and voidable marriages. Where void or voidable grounds exist, the marriage is considered to be invalid. However, these concepts have increasing lost significance in modern family law. Where marriage fails to work, divorce has become the most preferred way of terminating a marriage. In English Law, the court will grant a divorce where either of the partner justify that the marriage has irretrievably broken down. Since such avenues have become so common, there seems to be a growing campaign in legal circles that the concept of voidable marriages should be abolished and instead their position be taken up by divorce jurisdiction. However, although the concepts of void and voidable marriages may have less practical value as the basis of terminating marriages, they still offer the basis on which the boundaries of marriage partners can be determined and specify the conditions for establishing marriages.

In the law of nullity a marriage can either be void or voidable since its inception. These two concepts are derived from the Canon law of marriage. This is the law that governed most the law of marriage in England before formal statutes were enacted. The Canon law provided the ground on which a marriage could be established and whose parties could come together and be recognised as a husband and a wife. Any marriage that was formed out of the Canon Law restriction could be annulled by the ecclesiastical courts. The formal law intercepted to provide limits how the ecclesiastical courts could annul marriages after the death of either party by providing the distinction between a void and voidable marriage. The concept behind voidable marriages was that it was unreasonable to require either party to honour marital duties when a marriage did not exist in the first place. The main difference between a void and voidable marriage is that a void marriage was illegal from the word go but a voidable marriage can only be declared illegal after a decree of annulment is issued. More differences are provided by the Matrimonial Causes Act 1973.

In section 11 of the Matrimonial Causes Act 1973, the English Law lays down the ground on which a marriage can be declared void. Much of this is related to the provision of Marriage Act 1949 and the subsequent amendments. In these provisions, a marriage is void if it is not a valid marriage as provided by the Marriage Act 1949 as amended. In the case of Mick Jagger and Jerry Hall case for example, the court observed that their marriage was invalid from the beginning. It did not meet the conditions for marriage under the English Law. As per the act, a marriage is invalid if it is composed of parties who are within the prohibited degrees relationship, either the party is under the age of sixteen, or if the marriage does not fulfil certain requirements regarding the formation of marriage. In addition, the marriage shall be void if either of the parties was lawfully married by the time of the marriage and if the parties are not of the opposite sex. The law also prohibits marriage between close relatives.

Such other conditions that may constitute a void marriage are bigamy and same sex marriage. It is provided in the English Law that a person should not be married to more than one partner. Such an act would amount to an invalid marriage. The law also establishes that a proper marriage is constituted of person of different sex and that all marriages have to be mutually agreed. Even a surgical altercation on the sex of a partner as ruled in Corbett v Corbett can not alter the provisions of the marriage rules.

A question would arise as to what would happen if a marriage is annulled and out of the relationship there was a child. In a recent case, Hudson v Leigh, Judge Bodley addressed such a situation and ruled that where a marriage is annulled the carer of a child born out of such a relationship can apply for financial benefit as provided for in Schedule 1 of the Children Act 1989. In addition, the court can also issue a residence order or a contact order to take care for the interest of the child as it is in all marriage terminations.

The other kind of invalid marriage that can exist is the voidable marriages. The difference between void and voidable marriages is that the former is invalid from the beginning while the latter is valid until either partner seeks annulment. In void marriage, a decree of nullity is not necessary to invalidate a marriage. This is in contrast to voidable marriages where a decree of nullity must be granted. It is important to point out that a void marriage is from the beginning considered unacceptable in the eyes of the public. Voidable marriages are somehow different because their problems are not necessarily of the public concern but the problem between the partners themselves. Such marriages are essentially considered to be defective.

The grounds for voidable marriages are laid out in Section 12 of the Matrimonial Causes Act 1973. One of the ground on which a voidable marriage can be established is where either party has no capacity to consummate (have not had sex with the partner since they married) or has wilfully refused to do so. In the premise of the Canon Law, entering into a marriage indicated an ability to consummate it and if either party was unable to have sex, the marriage was void and thereafter voidable. The Canon Law held that the physical ability to consummate a relationship was a fundamental requirement for marriage and its inability thereof rendered the marriage voidable. In such a situation a degree of nullity had to be granted.

In modern family law theory, incapacity to consummate is a debated legal issue since the physical inability to perform is a treatable condition. In this case, a divorce jurisdiction will have to establish whether the condition is permanent or treatable. As Section 12 (a) of the Matrimonial Causes Act establishes, the condition has to be “incurable and permanent”. It is important to note that where the respondent has refused to go under the necessary treatment, the court will consider the condition to be incurable. Other incapacity to perform, as observed in the case of Singh v Singh may be due to the mere dislike of the other partner, but it is not in itself a necessary condition to annul the marriage.

The court also, as seen in the case of Kaur v Singh, has established that a decree of nullity can be granted where either partner wilfully refuses to consummate. Such conditions are also considered in divorce cases where wilful refusal to consummate can be used to prove that a marriage has irretrievably broken down. In such a case, a petitioner will successfully argue the case of a divorce on the ground that he or she can not be reasonably expected to live with a spouse who has willingly refused to consummate a marriage. On such ground, the importance of voidable marriage concept becomes less significant.

Duress, mistake, a party of unsound mind, fraud are the other grounds on which a voidable marriage can be established. Where it is proved that a party was coerced into a marital relationship, a decree of nullity can be granted. In Hirani v Hirani and Mahmood v Mahmood for example, the petitioners in the respective cases succeeded in proving to the court that the threat to ostracise them if they did not marry a partner of their respective parents’ choice amounted to duress. Similarly, the court granted a decree of nullity in Scott v Sebright where the respondent had tricked and threatened the petitioner into entering into a marriage. In granting decree of nullity in Lee v Lee, the judged painfully remarked that if there had not been a wedding, there definitely had to be a funeral.

Communicable venereal diseases, pregnancy by another person by the time of marriage and a mental disorder that can make a person unfit for marriage at the time of marriage are the other reason that can establish a ground for voidable marriages. In such a case a petitioner will have to prove that the material facts were concealed from him or her at the time of marriage. Such issues as communicable venereal diseases have however come into question as grounds for annulling a marriage since the breakthrough in modern medicine have made such diseases treatable.

Given the above grounds for void and voidable marriages, there seems to be reasonable grounds to retain the concepts in modern family law. In the first place, nullity satisfies some religious and personal reasons. As opposed to divorce proceedings, a decree of nullity does not impose residential conditions. Divorce proceedings impose requirements that the person seeking annulment must be a residence in the county for three months and six months within the state. In addition, the party applying for annulment does not have to wait for a year as it is in divorce dissolution. An annulment can be sought any time after a wedding. Cooling off period as provided in divorce dissolution provides a strong case for abolition of nullity for those who argue on the basis of protecting the family institution.

Given that a significant percentage of our society is still grounded on certain religious beliefs, retaining the void and voidable concepts has certain significant values. As per religious sense, marriage must be properly constituted, and if not, there is no basis of retaining them as valid. From the Canon Law a marriage that is not formed in sacramental sense is invalid. However, it must be understood that in the current nullity law, a decree of nullity does not render the children from such a marriage illegitimate. In English law, the annulment does not affect civil laws as regard to the child custody, visitation rights, alimony, or the division of property.

In the case of an annulment, just like in divorce, the parties can still as well apply for financial relief. Similarly, any gift to either partner will lapse after a decree of nullity is granted. However, it is important to point out that unlike in divorce, annulments occur after a short stint of marriage and thus there are no major property disputes, and in most cases a marriage might not have yielded a child. Sometimes the decree of nullity becomes the most favoured for those who want to escape the property and the ancillary financial relief granted in divorce dissolution.

However, it is correct to argue that with the current social acceptability of divorce, annulment is increasingly losing significance as an option of terminating marriages. This is evidenced with the low number (less than 1% of the applicants) that is opting to terminate their marriage through nullity. This proves that the law of nullity has less practical value. In addition, unlike in divorce dissolution a petition for an annulment must establish an element of fault. Again, the law of nullity is attacked on the ground that it makes it hard for a spouse seeking property and ancillary benefits since the petitioner must prove that he or she qualify as a putative spouse.

Nonetheless, the void and voidable concept still have practical values in that the law of nullity and the law of divorce deal with two separate issues. While the law of nullity is concerned with the situation before marriage, the law of divorce is concerned with the circumstances happening after the marriage thereby rendering the marriage unworkable. The concepts of void and voidable marriages may have less practical value as the basis of terminating marriages, but they still offer the basis on which the boundaries of marriage partners can be determined and specify the conditions for establishing marriages.

In summary, the low number of applicants applying for annulment raises questions whether the complex law on nullity is still important in modern family law. In 2008, for instance, it is only 200 decree of nullity was granted out of the total 331 application for annulment. Although the concept of void to this far remained important in drawing the boundaries of acceptable partners as far as close relatives are concerned, the low number of petitions heightened the debate on the need to abolish voidable marriage concept. Much of this debate cantered on the understanding that divorce proceeding could cater for the need of marriage termination. As cretney has pointed out, the modern family law can do away with the concept and leave the case for annulments to the religious bodies where the case for void marriages is still strong. In addition, the thin line between voidable marriages dissolved through divorce and those dissolved through nullity has provided a strong case for the abolition of the voidable concept. Many of the applicants today prefer divorce as opposed to the decree of nullity. Given these facts, it is only clear that the family law is headed to a major reform, where the law of nullity may be merged to the law of divorce or be abolished altogether.

Bibliography

BBC News “A Marriage by Name Alone”, [July 9, 1999] Web < HYPERLINK “http://news.bbc.co.uk/2/hi/uk_news/390493.stm” http://news.bbc.co.uk/2/hi/uk_news/390493.stm> [Accessed on Jan 3, 2013]

Cretney S “Principles of family law”, (London: Sweet & Maxwell, 2008)

Goda P “The Historical Evolution of the Concepts of Void and Voidable Marriages”, (1967) 7 J. Fam. L. 297- 310

Herring J “Family Law” (5th edition), (Harlow: Pearson Longman)

Law Reform Commission “Report on Nullity of Marriage” (Dublin: The Law Reform Commission, October 1984)

Lowe N & Douglas G “Bromley’s Family Law” (10th edition), (Oxford: Oxford University press, 2006)

Ministry of justice “Petitions for annulment” (London: Ministry of Justice, 2009)

Standley K “Family Law” (6th edition), (Basingstoke: Palgrave, 2008)

The law Society’s Law Reform Committee “Nullity of Marriage: The Case for Reform” (Dublin: Law Society of Ireland, 2001)

Tolstoy D “Void and Voidable Marriages”, (1964) 27 (4) The Modern Law Review 385-394

Statutes

Children Act 1989 (Schedule 1)

Civil Partnership Act 2004

Family Law Act 1995 or Family Law (Divorce) Act 1996

Marriage Act 1994

Matrimonial Causes Act 1973

Nullity of Marriage Act 1971

Cases

Corbett v Corbett [1971] P. 83

Hirani v Hirani [1982] 4 FLR 232

Hudson v Leigh [2009] EWHC 1306

Kaur v Singh [1972] 1 All ER 292

Lee v Lee [1928] 3 SW 2d 672

Mahmood v Mahmood [1993] SLT 589

Scott v Sebright [1886] 12 PD 210

Singh v Singh, [1971] 2 All ER 828