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Nullity revision notes - Adult Family

Law
Family Law (University of Sussex)

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What is marriage? in the case of Hyde v Hyde lord Penzance said: ‘I conceive that
marriage, as understood in Christendom, may … be defined as the voluntary union for life
of one man and one woman, to the exclusion of all others.’ However, in light of the
marriage (same-sex couples) act 2013, this definition was partially removed where
schedule 3, part 2 removes ‘’man and woman’’ as ‘two people of opposite or same sex’’.

There are two ways to dissolve a marriage; 1. Nullity 2. Divorce,

Difference between divorce and nullity: where the marriage is annulled the law
recognises that there has been some flaw in the establishment of the marriage, rendering
it ineffective. Where there is a divorce, the creation of the marriage is considered proper
but subsequent events demonstrate that the marriage should be brought to an end.

Nullity: defines who may or may not marry and reveals what the law sees as the essential
ingredients of marriage. What might appear to be a ceremony of marriage can either be,
• A valid marriage A non-marriage is where the
• A voidable marriage ceremony that the parties undertook
• A void marriage was nothing like a marriage and so if
• A non-marriage Voidable no legal consequence.
marriage Void marriage It does not even constitute an
attempt at a marriage. Ghandi v
is governed by s.12 of the MCA Is governed by s.11
Patel [2002] 1 FLR 603 : Hindu
of the
marriage conducted by a brahmin
1973. MCA 1973.
priest in a London restaurant was
held to be a
A marriage can be annulled Lord Greene in
Reneville because of some defect, but a defined a ‘nonmarriage’
void marriage as ‘a valid marriage exists until a Hudson v Leigh [2009] 2 FLR 1129:
marriage that never exists decree absolute Bodey J: set out a list of factors
of nullity is from the beginning’. indicating whether a marriage was a
pronounced. If it is non-marriage or a void marriage.
never annulled by a
If the marriage is a non-marriage, it
court order, it will be
is nothing in the eyes of the law and
treated as valid.
the court has no power to
redistribute property and the couple
will be treated as an unmarried
couple. Akhter v Khan [2018] EWFC
If the marriage is 54, [2019] 1 FLR 575: Nikah only
void, the Grounds on which marriage ceremony was a nonmarriage and
and CP are void: void.
Prohibited degrees Age Formalities
court has the power to make financial orders,
redistributing property. Non-marriage

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This case raises the difficult issue of groups from
minority cultures who marry according to rites of
their culture.
Bigamy r
e
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A marriage between A marriage will be

Whether the If at the time of the two o
people who are void if either party
marriage was ceremony either related to y
each of the marriage is performed within w
party is already
other in certain under 16. rites of the church s
married to someone ways in prohibited. of England or else, c
the marriage If either party is outside. will be r
‘void’. e
B and L v UK: a under the age of 16 father -in- a
law and and 18 then it is The law deals t
with daughter-in-law necessary to have this i
under s.25 and wished to marry. the written n
consent s.49 of the MA After the ruling in g
of each parent with 1995. this case, the a
court PR. was forced to change the law and
remove the restricted that both former spouses
should be dead. g
However, a Rebecca Robert has In MA v JA, the a
Bigamy can be a stepparent can questioned whether l
court took a broad crime. However, marry a stepchild of m
requiring parental interpretation in Barton has
argued, a former spouse, if consent to marry is finding r
that a there is little both parties are appropriate in r
the marriage could be justification for i
aged 21 or over and day and age. valid, even if there a
making this a crime g
the younger part were significant e
and instead more .
has not been a child departures from the could be done to Public policy
of the family in formality check if the parties
relation to the other requirements were free to marry. In city of Westminster v C, the COA held a
while underage of because the couples marriage between a
18. honestly believed man with severe
t intellectual impairment and a woman in
h Bangladesh performed over the telephone
e void.
c
e

m
 n

l
e

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The city case highlights that the law sees sexual 1. Wilful refusal by a
relations as at the heart of marriage. spouse to consummate
the marriage.
This decision was followed in X county council v 2. The incapacity of either
AA, where the inherent jurisdiction was used to party to consummate
declare invalid marriage involving a woman with the marriage.
learning difficulties. (she did not understand the
differences between men and women or The applicant for nullity can rely on
pregnancy). There was no evidence she consents his or her own inability to
to be in a relationship. consummate but on his or her own
Matrimonial Causes Act 1973, section 12 wilful refusal. Consummation: an
act of sexual
(a) that the marriage has not been consummated owing to the
incapacity of either partyto consummate it;
(b) that the marriage has not been consummated owing to the
wilful refusal of the respondent to consummate it;
(c) that either party to the marriage did not validly consent to it,
whether in consequence of duress, mistake, unsoundness of
mind or otherwise.
(d) 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.
(e) that at the time of the marriage the respondent was suffering
from venereal disease in a communicable form.
(f) that at the time of the marriage the respondent was pregnant by
some person other than the petitioner.
(g) 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 (h) 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.

The grounds on which a marriage is voidable: they are set out in s.12 of the MCA
1973

Inability or wilful refusal to consummate Lack of consent: The MCA recognises four
This only applies to marriages involving couples of the intercourse. circumstances
which may opposite sex. In order for a marriage to be consummated, cause a
person to be unable to give there need only be one act of consummation, but the act
must consent so as to render a marriage take place after the solemnisation of the
marriage. voidable:

There are two grounds of voidability connected to Duress: previously the COA had
required consummation: a threat to life, limb or liberty and held
held that the threat of penury or social

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degradation was insufficient (Szechter [1981]). However, obtain treatment, he/she may not rely
the case of Hirani [1982] radically changed things. on inability to consummate (S v S [1956]
• It is now best subjective: ‘the threats, pressure or
whatever it is, is such as to destroy the reality of to duress.
the consent and overbear the will of the • The effect fo the Hirani
decision individual’ (p.234) Whether the threats or is that those who have
pressure are such as to destroy the reality of the undergone an arranged

The Law Commission has

suggested that really what is at
issue is the legitimacy of the
threat rather than the lack of
consent. After all, many people
feel a pressure from family or
society to get married.

The threat can also emanate from

third part, it need not emanate
from the spouse.

Repugnance: Singh v Singh [1971] P226: wife Mistake: as to the other party’s
identity or nature of petitioned on the ground of her husband’s the ceremony.
incapacity to consummate due to her invincible This will affect the marriage in two
ways:
repugnance to him. Petition dismissed, as her Mistake as to the
person/identity you are refusal to go through with the religious ceremony
marrying (Allardyce v Mitchell) or (C v C) was not repugnance to sexual intercourse.
Mistake as to the nature of the ceremony (Mehta v Mehta)

Refusal to consummate requires a ‘settled and Unsoundness of mind: if the

person lacks the defined decision not to consummate without capacity to marry,
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no one else can consent on their wilful excuse’. It can also be when one party has
behalf. The consent/mental capacity needs to be at agreed to have sex under certain
conditions. the time of the marriage not after (s.12(D) consent and overbear the
will of the individual: marriage in the face of subjective test. Social pressure can be
duress: P v considerable pressure have the R (Forced Marriage: Annulment
Procedure) [2003] choice of either accepting their
Sense of respect and duty cannot be respected: culture and the validity of
Singh v Singh [1971] 2 All ER 828: cultural marriage or accepting the
expectations with no direct pressure do not dominant culture’s views that
amount In Baxter, the consummation took place, marriage should be
made even when wearing a condom. voidable.

Inability to consummate: It cannot be

cured by surgery and can be psychological
or physiological if the person refuses to
Re X [2018], a married couple had never had sex The state of this is stated by
Singleton LJ in Estate and had no intention of doing so. Their marriage of park
[1953].
was valid as there was clear
evidence the marriage could be
happy without sexual intercourse.

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Sheffield City Council v E and S [2004] EWHC 2808 s.12(f) that at the time of the marriage, the
(FAM): recognition of the nature of marriage and of respondent was pregnant by some person other
the duties and responsibility that are normally than the petitioner.
attached to marriage. Mental disorder: s.12(d) Bennett v Bennett [1969]
• Woman who lacked capacity to ‘incapable of carrying out the ordinary duties and
consent to sexual relation, would not obligations of marriage’.
be able to consent to marriage. Venereal disease: is a communicable form: s.12(e),
if the
respondent is
suffering from
VD.
Gender recognition certificate:
an interim gender recognition
certificate under GRA 2004 has,
after the time of the marriage,
 been issued to either party of
the marriage.

Bars to relief where marriage is voidable: there are no bars to a

marriage being void, although there are some circumstances which
prevent the petitioner from seeking to annul a voidable marriage.
• Under s.13 of the MCA, there are time limits for a certain nullity
petitions, and for all petitions there is a general bar based on the
approbation of the petitioner.
• So a person is petitioning because her husband cannot
consummate but if she made it look like it was okay in the first
place.

Time s.13(2) applicable where the petitioner is relying on the grounds other than 1
Non-consummation or 2. Interim gender recognition
certificate.
• Needs to be within 3 years have passed.
In B v I (Forced Marriage) a 16-year-old girl was forced into
a marriage in Bangladesh and was only able to alert
someone over three years later. The court was unable to
declare the marriage a nullity but could declare it to be a
marriage which was incapable of recognition within the
UK.

Knowledge of defect s.13(1)(2) limbs to this section, both must be satisfied.

The petitioner HAD knowledge of that marriage was
voidable but had led the respondent to relieve that
she/he would not do, and this would be unjust to the
respondent to grant decree.
Approbation
s.13(1). It is essential that both para-a and b, be proved
to the court’s
satisfaction. The basis of this bar is that it is seen as
contrary to public policy and unjust to allow a person
to seek to annul the marriage after leading the other
party to believe he or she would not challenge the
marriage.
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Sham marriage/CP: A ‘sham’ marriage or ‘sham’ civil partnership, or what is sometimes

called a ‘marriage or civil partnership of convenience’, is a marriage or civil partnership
which is entered into for an ulterior motive, such as to gain British citizenship and/or to enter
the UK

Forced marriages:
A forced marriage is a marriage which is entered into without the true consent of one or
both of the parties and where some degree of duress is involved, which may include, for
example, physical, psychological, financial, sexual, and emotional pressure, and even
violence.
• A forced marriage is different from an ‘arranged marriage’, which is one where the
families of both parties take a leading role in choosing a marriage partner but where
consent to the arrangement remains with the parties themselves.
• In NS v MI, where a nullity decree was granted to the petitioner who had entered into
a forced marriage, Munby J said that ‘the court must not hesitate to use every
weapon in its protective arsenal if faced with what is, or appears to be, a case of
forced marriage’. • In Re K; A Local Authority v N and Others, Munby J described
forced marriage as an ‘appalling practice’ and ‘a gross abuse of human rights’. He said
it was ‘a form of domestic violence that dehumanises people by denying them their
right to choose how to live their lives’.
Forced marriage protection orders: Under Part 4A of the Family Law Act 1996, the Family
Division of the High Court and county courts have jurisdiction to make a forced marriage
protection order, which is an order providing legal protection for an actual or potential victim
of a forced marriage or an attempted forced marriage.
• ‘Forced marriage’ is defined in the Act as a marriage where a person has not given
full and free consent;
• and ‘force’ is defined to include not just physical coercion but coercion by threats or
other psychological means

In Bedfordshire Police Constabulary v RU a forced marriage protection order was made to

protect a young woman aged 16. She later applied to dispense with it. The court determined
she had been pressurised into making the application and so kept the order in force.

CP:
Persons in a same-sex relationship have been able to enter into a registered civil partnership
since the enactment of the Civil Partnership Act 2004.
• However, even before the introduction of civil partnership, the law had begun to give
same-sex couples various rights.

One of the most significant milestones in the development of gay and lesbian rights was the
2001 decision in Fitzpatrick v Sterling Housing Association Ltd, where the House of Lords
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held that a same-sex partner was capable of being a member of the other partner’s family
for the purpose of the Rent Act 1977, thus enabling the applicant to succeed to a tenancy
held in the name of their deceased partner.
• In Fitzpatrick it was held that a same-sex partner could succeed to his deceased’s
partners tenancy by being classed as a member of his family, but that he could not be
classed as ‘living with the original tenant as his or her husband or wife’.

In Ghaidan, this difference in treatment was considered in light of the HRA 1998 where the
House of Lords held that it infringed Article 14 of the ECHR. In reaching this decision the Court
accepted that both opposite- and same-sex relationships can be marriage-like in nature, with
the result that any difference in treatment between the two was based upon sexual
orientation which had no objective or reasonable justification
Same-sex marriage: same-sex marriage remained unlawful until the enactment of the
Marriage (Same Sex Couples) Act 2013 Key
case: Wilkinson v kitzenger
The first same-sex marriages took place on 29 March 2014. Since then, the number of same
sex marriage has grown.
As a result of the 2013 Act, same-sex couples were given greater choice in terms of
relationship status than opposite-sex couples: they could either enter into a civil partnership
or marry. By contrast, opposite-sex couples who wanted to formalise their relationship could
only marry.
Key case: Keidan v Secretary of State for Education

• Differences between marriage and civil partnership:

What is it? It is a legally recognised union between a couple of the same sex. It follows a
different regime to marriage and its dealt with under the CPA 2004. Thus, civil partnership
commences when both signed the civil partnership document whereas a marriage can only
be entered into when parties say their vows. (spoken words)
• They tend to have similar rights and there are a few differences, one is in relation to
pension schemes, so if one of the parties that’s part of the CP passes away and the
other CP may not receive the full entitlements in terms of survivor benefits from
pension scheme that they would if they were MARRIED.
• Travel provision: some countries don’t recognise civil partnerships.
When a civil partnership ends: the dissolution of a civil partnership refers to the end of the
relationship between parties. (dissolving the CP rather than ‘divorce’.)
• The CP cannot use adultery as one of the reasons for the dissolution whereas that
can be used in divorce proceedings.
• In order to dissolve the CP, there is one ground which is the same as divorce that CP
has broken down irretrievably and to prove that ground CP would need to rely on one
of four facts: 1. Unreasonable behaviour, 2. Two years separation and consent, 3.
Five years separation, 4. Desertion.

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Other notes:

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• Same-sex couples can enter into a legally binding marriage.

• The only part of Lord Penzance’s definition, therefore, which remains material today
is that marriage involves a voluntary union, a fact which has been reinforced in recent
years by reforms giving greater protection to victims of forced marriage.
The law in context: The right to marry is a Human Rights under Article 12 of the ECHR:
‘Men and women of marriageable age have the right to marry and to find a family according
to the national laws governing the exercise of this right’.
Presumption of marriage: In some cases, the common law presumption of marriage may
arise in order to make a finding that there is a valid marriage. One must be clear, however,
the presumption is that there has been a valid marriage ceremony, not that a lengthy
cohabitation, by itself, has given rise to a valid marriage.
• This presumption can arise where a couple believe in the validity of their marriage,
hold themselves out as married couple, and cohabit as a married couple for a
substantial period of years. In these circumstances, the law can presume that a valid
marriage ceremony has taken place, a presumption which can only be rebutted by
the production of clear evidence to the contrary.

Singh v. Singh, [1971] 2 All ER 828.

In this case, a 17-year-old Sikh girl went through a civil ceremony of marriage
arranged by her family. She had not met the groom before the wedding and when
she met him she refused to go through the Sikh religious ceremony. She applied for
nullity on the grounds that she had only gone through the ceremony out of a sense
of duty to her parents and Sikh customs. The court rejected her argument that her
consent was vitiated by duress since there was no evidence that her will had been
overborne or that her consent had been obtained through fear.
Singh v. Kaur, [1981] Court of Appeal (Civil Division).
The appellant was from a Sikh family and had lived in England since he was four years
old. He was pressured by his parents to marry a girl from India. He was told that if he
refused, his family would be a disgrace to the community and that he would not be
allowed to work in the family business. At the age of 21, he agreed to go along with
the marriage. Case law stated that duress exists only when the will of one of the
parties had been overborne by genuine and reasonably held fear caused by threat of
immediate danger to life, limb or liberty. The court held that the evidence in this case
fell “far, far short of that.”
Hirani v. Hirani, [1983] 4 F.L.R. 232.
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A 19 year old Hindu woman living in England became friendly with a Muslim whom
her parents did not approve of, so they arranged for her to marry a man neither she
nor her parents had met. The marriage took place at a registry office and was
followed by a religious ceremony, but was not consummated and the woman left
after six weeks. She petitioned for a decree of nullity on the ground of duress
exercised by her parents, upon whom she was financially dependent, and who had
threatened to turn her out of the home if she did not go through with the marriage.
The court granted the decree of nullity, holding that it is not necessary to find a
threat to life, limb or liberty in order to find duress, the crucial question being
whether the threats or pressure were such as to overbear the will of the individual
and destroy the reality of their consent. The duress must involve a coercion of the
will so as to vitiate consent. The test for duress is simply “whether the mind of the
applicant has in fact been overborne, howsoever that was caused.”
Re KR (A Child) (Abduction: Forcible Removal by Parents), [1999] 2 F.L.R. 542.
KR, the youngest daughter of a Sikh family of Indian origin, left home at 16 to live
with her sister, who had earlier moved in with a man against her parents' wishes. The
father reported KR as a missing person, and the police returned her to the care of her
father. When she was 17, KR was taken to India by her parents and placed in custody
of her aunt. KR's sister instituted wardship proceedings and KR was made a ward of
court, which was continued during her minority. KR persuaded her relatives to take
her to the British High Commission in Delhi to establish whether her stay in India was
voluntary, and when she stated that she was not in India voluntarily she was flown
back to the UK. The judge held that child abduction remains abduction, even when
both parents are abductors and the child is nearly an adult.
P v. R, [2003] 1 F.L.R. 661.
The plaintiff, a British citizen of Pakistani origin, began a relationship her parents did
not approve of at the age of 17. When she was 20, she travelled with her parents to
Pakistan for the funeral of her sister. While there, her parents announced that she
was to marry her cousin. The plaintiff did not consent and was allegedly forced by
emotional pressure and threats of force to go through with the ceremony. Several
months later she was able to return to the UK where she went into hiding and
applied for annulment of the marriage. The application was allowed, and a decree
was granted, holding that any apparent consent shown by the plaintiff was
extinguished by the nature of the circumstances.

Re M Minors (Repatriated Orphans), [2003] EWHC 852.

Two girls, aged 13 and 15, were born in Pakistan, but came to live in the UK in 1991.
Their mother had died, and after the death of their father in 1999, they lived with a
paternal relative R. A court order prohibited R from removing them from the UK, but
after it expired they were taken to Pakistan where they lived with relatives. Since the
girls had inherited land, their relatives forced them to go through betrothal
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ceremonies. Wardship proceedings were initiated in the UK, and they were
repatriated in February 2003. Justice Singer noted that ‘[a]s a society, we have
become increasingly aware of the need to preserve the individual's ability to make
effective choices, and to safeguard the integrity of a child or young adult from the
risk of marriages forced or imposed upon them by undue pressure and sometimes by
violent threat.’ The judgement stresses the responsibilities of local authorities and
the need for speedy action.

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In Re SK (An Adult) (Forced Marriage: Appropriate Relief), [2004] E.W.H.C. 3203 (Fam).
A British citizen living in England visited her family in Bangladesh and was detained in
Bangladesh against her will for a forced marriage. An application for relief was made
on her behalf. Relief was granted by the court, which used its inherent jurisdiction to
provide declaratory relief to an adult deprived of the capacity to make relevant
decisions. The court gave directions to ascertain whether or not the victim had been
able to exercise her free will in decisions concerning her civil status and her country
of residence by requiring that she be seen by an appropriate official at the British
High Commission overseas