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Nullity – annulment

The law regards some marriages as being void ab initio (i.e. completely invalid from the outset) and others as voidable (potentially invalid but which remain in force until a Decree of Nullity is granted). Contrary to a divorce, a petition for nullity also requires oral evidence being given in Court.

The nullity petition is dealt with in much the same way as for a divorce petition, except as explained below:

  • It may be presented within 12 months of marriage (whereas a divorce petition can only be issued after the parties have been married for 12 months;
  • The content will not include reference to the marriage having irretrievably broken down;
  • The prayer will seek the annulment of the marriage;
  • Although the petition is served in exactly the same way as a divorce petition, the notice of proceedings and acknowledgement of serve will refer to nullity;
  • It is particularly important to note that the special procedure provisions do not apply – i.e. the application for directions for trial cannot be dealt with by correspondence only and the matter will be listed for a hearing where the judge will decide whether to grant the first stage of the nullity proceedings, the decree nisi.

As with divorce proceedings, a decree nisi will be pronounced and, after the expiration of the statutory period (presently 6 weeks and 1 day), an application can be made for decree absolute (the final decree).

A marriage may be annulled on the grounds that it is void or voidable.

Void Marriages

A marriage may be void for the following reasons:

  • if the parties are too closely related to each other through blood or marriage;
  • if the parties are under age;
  • if the marriage requirements are not met;
  • the parties were not respectively male and female;
  • a party to the marriage was already lawfully married (bigamy)
  • a polygamous marriage was entered into outside England and Wales when either party was domiciled in England and Wales at the time of the marriage.

Voidable Marriages

A voidable marriage is regarded as a valid marriage until a Decree of Nullity is pronounced. Unless and until such a Decree is obtained, the marriage is as legal as any other.

The law provides that a marriage will be voidable on the following grounds:

  • the incapacity of either of either party to consummate the marriage. However an impotent man or woman can petition on the grounds of his/her own incapacity to consummate the marriage;
  • the marriage has not been consummated owing to the Respondent’s willful refusal to consummate;
  • either party to the marriage did not give a valid consent to the marriage as a consequence of duress or mistaken identity or whilst suffering unsoundness of mind (want of consent);
  • that at the time of the marriage, either party, although capable of giving a valid consent, was suffering from a mental disorder within the meaning of the Mental Health Acts;
  • that the respondent was suffering from venereal disease, in a communicable form, at the time of the marriage;
  • the respondent was pregnant by another man at the time of the marriage;
  • 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; and
  • that the respondent is a person whose gender at the time of the marriage had become the acquired gender in the UK.

Procedure

Once the petition is issued by the Court, it will be served on the respondent by the Court and the respondent will have to return his or her acknowledgement of service to the Court and indicate whether he or she wishes to defend the proceedings or not.

The other party will then be able to apply to the District Judge for the appointment of medical inspectors (doctors) to examine the parties and a report will then be filed with the Court. However this is not necessarily necessary if the matter is not contested.

The petitioner’s first application to the court (assuming that the respondent does not defend the proceedings) will be for Decree Nisi. However, contrary to a divorce, the application will be heard by the Judge in Open Court and the petitioner will be required to give oral evidence on oath in support of his or her petition.

Once Decree Nisi has been pronounced, the case will proceed in exactly the same way as an undefended divorce and the petitioner can apply for Decree Absolute (the final decree from the court) six weeks and one day after the pronouncement of the Decree Nisi. The marriage will therefore be valid until the Decree Absolute is pronounced after which, it will be annulled. Once the annulment is finalised, then it is as if the marriage had never taken place.

If you have any questions or need any further advice, please do not hesitate to contact us and we will do our best to accommodate you.

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