68 King William Street
London EC4N 7DZ

T: 020 7959 2422
F: 020 7959 2421
E: info@pcm-law.net

A Brief Guide to Nullity

The majority of marriages that are brought to an end in England and Wales are as the result of divorce proceedings, however it may be possible to present a nullity petition. Such a petition can be presented within the first year of marriage, unlike a divorce petition which cannot.

The law regarding nullity is contained in sections 11 and 12 of the Matrimonial Causes Act 1973 ("the Act") and there are two sets of grounds upon which petitions for nullity may be presented. Section 11 of the Act sets out the grounds upon which a marriage is "void", and section 12 of the Act sets out the grounds upon which a marriage is "voidable". The difference between the two is that a void marriage is not a valid marriage, but a voidable marriage is a valid one until such time as a Decree Absolute of nullity is pronounced.

A marriage celebrated after 31st July 1971 shall only be void on the following grounds:

• that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986, that is to say where:
  
  
  • the parties are within the prohibited degrees of relationship;
  • either party is under the age of sixteen; or
  • the parties have intermarried in disregard of certain requirements as to the formation of marriage;


• that at the time of the marriage either party was already lawfully married or a civil partner;
• that the parties are not respectively male and female;
• in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales (a marriage is not polygamous if at its inception neither party has any spouse additional to the other).

A marriage celebrated after 31st July 1971 shall only be voidable on the following grounds:

• that the marriage has not been consummated owing to the incapacity of either party to consummate it;
• that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;
• that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
• that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage;
• that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;
• that at the time of the marriage the respondent was pregnant by some person other than the petitioner;
• that an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage;
• that the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.

There are "special rules" for some of the grounds for presenting a nullity petition, these being contained in section 13 of the Act. The position is as follows:

• Where the petition is based on certain grounds (including lack of consent and the respondent being pregnant (at the time of marriage) by some person other than the petitioner), the court must be satisfied that proceedings were instituted within 3 years of the date of marriage, or leave granted for the institution of proceedings after the expiration of that time;
• Such leave may be granted where the court is satisfied the petitioner has suffered from mental disorder at some time during that period and it is considered in all the circumstances that it would be just to grant such leave;
• An application for leave may be made more than 3 years after the date of marriage;
• Where the petition is based on certain grounds (including the respondent's pregnancy by a man other than the petitioner), it must be proved that the petitioner was ignorant of the facts alleged at the time of marriage;
• The court will not grant a Decree Nisi (the first of the two Decrees), the final one being the Decree Absolute), if the respondent satisfies the court that:
  
  • The petitioner, although aware that the parties' marriage was voidable, conducted him/herself in such a way with regard to the respondent as to lead him/her reasonably to believe that no petition would be issued; and
  • The grant of such a Decree would be unjust.

For initial free advice please contact Caroline Ford by email or phone 020 7959 2422.