A nullity of marriage is a declaration by a court that a marriage is null and void and that no valid marriage exist. This differs from divorce and civil partnership proceedings in that a divorce or civil partnership is a declaration bringing a valid marriage to an end.
Under the law of nullity, there are two types of marriages that may be annulled — void or voidable marriages.
Where a marriage is void, it is regarded as if it never took place. It is advisable to obtain a court order declaring that your marriage is annulled in order to avoid doubt where the parties are unclear as to whether a marriage is void.
Where a marriage is voidable, it is considered to be a valid marriage until a decree of annulment is made.
Void marriages are not valid where the parties are within the prohibited degree of relationship, for example the family relationship is too close, such as mother/son, father/daughter, sister/brother or aunt/nephew. However, stepfather/stepdaughter and stepmother/stepson can get married if they are both over the age of 21 and the child was not a child of the family in relation to the other while under the age of 18.
Other grounds for nullity include the situation where at the time of marriage either party was already married or a polygamous marriage was entered into outside England and Wales and either party was domiciled in England and Wales at the time of the marriage.
Voidable marriages arise where:
- the marriage has not been consummated owing to the incapacity of one party
- the marriage has not been consummated owing to the wilful refusal of the respondent not to consummate it
- either party to the marriage did not consent
- at the time of the marriage one of the parties was suffering a mental health disorder so as to be unfit for marriage
- at the time of the marriage the respondent was suffering from a venereal disease
- at the time of the marriage the respondent was pregnant by another man
- that an interim gender recognition certificate was issued to either party at the time of the marriage
- the respondent's gender has changed from the gender at the time of the marriage
A petition will not be accepted if, before the marriage, the petitioner knew about the lack of consent, mental unfitness, pregnancy by another, venereal disease or acquired gender if three years have passed from the date of the marriage.
Incapacity can be either a physical or a mental condition, but it must be permanent and incurable.
Wilful refusal must be a definite decision come to without just excuse. The court will need to investigate the history of the marriage. An example may come about where the parties had married on the basis that they would not cohabit until a religious ceremony was complete and then one party refuses to go through the religious ceremony.
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Our family team has a vast amount of experience in drafting nullity petitions. Our strengths lie in our ability to understand that every family is different and this enables us to tailor our services to meet your individual family needs.
*Our family team offers both fixed fees and flexible pricing on pre- and post-nuptial agreements.
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