NULLITY ANSWER GUIDE
TERMINOLOGY AND STATUTES
TERMS ACTS
Petitioner Matrimonial Causes Act 1973 – nullity (grounds &
Respondent bars) for marriages
Intermarry Marriage Act 1949 – formalities
‘legal capacity’ [to contract a marriage] – done by Marriage (Same Sex Couples) Act 2013 – legalized gay
complying with formalities marriage & and CP may covert to marriage
"extent of the defect" and "the effect of the Civil Partnership Act 2004 – nullity (grounds & bars)
defect" for CPs
Fundamental flaw The Civil Partnerships, Marriages and Deaths
‘Hallmarks’ [of a marriage] - Gereis v (Registration etc.) Act 2019 – allows opposite-sex CP
Yagoub [1997]
‘so deficient’ (marriage) to make it a non-
marriage – Burns v Burns (2007)
Lex loci celebrationis - "the law of the land (lex
loci) where the marriage was celebrated".
Ancillary relief
‘Defective’ formalities
‘semblance’ of a marriage
METHODOLOGY:
Address the issues in the order that the statute provides, not as they appear in the question
Do void first, then voidable
Argue both sides, don’t run away with the simple answer
Stick to point of what the examiner asks, that is the issues, and don’t reach too far
Always ask when did these things take place: remember nullity requires before or at the time of
marriage
Nullity can be mixed with divorce or domestic violence
QUESTIONS TO ASK ONESELF:
1. Marriage or Civil Partnership?
2. Opposite-sex or same-sex couple?
3. What are the issues for discussion?
4. For each ground consider who can apply
All rights reserved for the purpose of Night Owls Members ©
ANSWER STRUCTURE:
STEP 1: State the statute
‘In assessing the validity of the marriage in which Boris is engaged in, one would have to make
the assessment under primarily/mainly the _________ and any other relevant statute and
provision where necessary and applicable.’
Determined by: sex of couple (opposite/same) and type of union (marriage/CP)
Say: ‘it is presumably a ____ couple’
STEP 2: Distinguish between void and voidable using De Reneville v De Reneville [1948]. Can do this
before starting void or when going to discuss voidable.
Lord Greene MR at para 100, III: 'A void marriage is one that will be regarded by every court in
any case in which the existence of the marriage is in issue ‘as never having taken place’ and are
void ab initio and can be so treated by both parties to it without the necessity of any decree
annulling it; a voidable marriage is one that will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.'
Miss Explanation: DR v DR has categorically differentiated a void marriage from a voidable
marriage to consider the former as fundamentally flawed and in such instance, one does not
require a decree absolute to end the marriage however under section 12 the provisions there
concerns finding a marriage voidable and if so found will require a decree absolute to
legitimately end the marriage
STEP 3: Void Ground Issues (s.11)
What are the effects? Decree not necessary but can help (Padero-Mernagh v Mernagh (Divorce-
Nullity-Remote Hearing) [2020] EWFC [court granted nullity degree in instance of bigamy]); no
financial relief (court’s discretion); no spousal status
STEP 4: Voidable Ground Issues (s.12)
What are the effects? Decree needed; Ancillary relief; spousal status exists
STEP 5: Voidable Marriage Bars (s.13)
All rights reserved for the purpose of Night Owls Members ©
Are there any bars to s.12 issues raised?
If a bar comes close, raise and dismiss
If none exist, state that none present themselves
STEP 6: Conclude
State which is the most provable ground from the discussion you have
STEP 7: Is there an Alternative?
Pay careful attention to what is happening here. Common sense will tell you that, they won’t
give this special alternative so that a mere ground can fail (most of the grounds are already
open). Hence, they’ll throw out facts that inject a different area of nullity law (e.g. bar) or
another area of family law (divorce/domestic violence)
Are there any bars?
conclude
Consider: Is there any hint of a Sham Marriage? Vervaeke v Smith [1983] says they’re valid but with
fewer legal consequences
All rights reserved for the purpose of Night Owls Members ©
GUIDE FOR SPECIFIC GROUNDS:
Requirement for grounds must be proven by evidence based in fact, not on belief. So tell your
client that they need to proof
Where the facts fall short of ground requirements but are similar enough, have a comparative
discussion
Grounds Overview
Void: s.11 (a-d) MCA 1973 Voidable: s.12 (a-h) MCA 1973
S.11 (a) (i): Prohibited Degree of S.12 (1) (a): Incapacity to Consummate
Relationship
S.12 (1) (b): Willful refusal to Consummate without just
S.11 (a) (ii): Age Cause
S.11 (a) (iii): Knowingly and Willingly S.12 (1) (c): Lack of Consent:
Failing to Comply with Formalities Duress
Non-Marriage Mistake
Humanist Marriage Unsoundness of Mind
S.11 (b): Bigamy Other Reason
S.12 (1) (d): Mental disorder
S.11 (c): One male one female
S.12 (1) (e): R had Venereal Disease
S.11 (d): Polygamy
S.12 (1) (f): R (wife) was pregnant for another man
S.12 (1) (g): R acquired IGRC
S.12 (1) (h): R change sex before marriage and P was not
aware
Voidable Marriage Bars: s.13 MCA 1973
All rights reserved for the purpose of Night Owls Members ©
S.13 (1): (a) P could have annulled marriage but lead R to believe they wouldn’t; AND (b) unjust to grant
decree
S.13 (2): for grounds s.12 (c, d, e, f, & h): (a) proceeding are brought after 3 years
S.13 (2) (b): after 3 years it is possible for court to grant leave
S.13 (4): p can get leave if: (a) P suffered from mental disorder during 3 years & (b) it is just
S.13 (3): P knew of defect/problem
Void Marriage Grounds: S.11 (a-d) MCA 1973
S.11 (a) (i): Prohibited Degree of Relationship
1. Say: ‘Relationship of consanguinity and affinity’
2. You may mention the other degrees of relationships that are discussed under this ground for a
comparative discussion.
Cousins
Traditionally this was prohibited for common citizens
…but over the years the law has relaxed this restriction and so they currently they are
allowed to marry
However, Baroness Deech (2010), as well as Taylor (2008), have prominently warned
against this practice due to health risks, although this is despite recent genetic evidence
and Alan Bittles from the Centre for Comparative Genomics in Australia in 2012, declared
these health risks to be exaggerated and said that ‘it would be a mistake to ban it.’
S.11 (a) (iii): Knowingly and Willingly Failing to Comply with the Formalities
1. Provision: s.49 Marriage Act 1949
a. Consent, Registration, Solemnization (ceremony)
b. Preliminaries? Open Door (MA 1949 s.44(2))? Was anyone kept from objecting/entering?
2. Did they fail to comply?
a. Most times it is uncertain in questions
b. NB: Getting married in a location like a church does not necessarily mean the ceremony was
the same
All rights reserved for the purpose of Night Owls Members ©
c. Note that there are some formalities and rite that are negligible and the courts are willing to
overlook, however should a couple fail to comply with the essential formalities then the
marriage will be seen as void [in addition to the mental factor]
3. Did they knowingly and willingly fail? Most times it is uncertain
a. Remember, s.11(a)(iii) requires not only failure but knowledge & willingness to fail
4. Non-Marriage?
a. The uncertainty in answering non-compliance, steers the conversation in this direction;
Lack of knowledge & willingness + non-compliance = may be non-marriage
b. Note that this is a contentious area: lack of clarity – Probert 2013
c. Leading case: Hudson v Leigh [2009], Bodey J 4 factors to consider:
i. whether the ceremony or event set out or purported to be a marriage
ii. whether it bore all or enough of the hallmarks of marriage
iii. whether the three key participants (most especially the officiating official) believed,
intended and understood the ceremony as giving rise to the status of lawful marriage.
iv. the reasonable perceptions, understandings, and beliefs of those in attendance.
If a non-marriage is found, then the couple may be as Bodey J reiterated, ‘play-acting’
Other key cases:
o AG v Akhter and Khan and Hussain and Southall Black Sisters (Interveners)
[2020] EWCA: non-qualifying ceremonies = NM
o Gereis v Yagoub [1997]: intentionally failed to comply; void
o Chief Adjudication Officer v Bath [2000]: defective ceremony but long
cohabitation allowed for the presumption of marriage; valid
o A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] : had 2
ceremonies that were invalid but W relied on presumption of marriage
o Gandhi v Patel (2002)
d. Legal Consequences: even with a NM, it still gains recognition from the law still as a marriage,
just with fewer benefits. Hence the advising party would probably need to go to s.12
(voidable) for assistance and bring some closure
5. Humanist Marriages
a. Not key to discuss but can be included by arguing that if any party wants to argue that the
marriage is fine (valid) (even though there are defective formalities). But this should not be
added as an extension to non-marriage
b. R may use this to contest…but will fail
All rights reserved for the purpose of Night Owls Members ©
c. Point to Be Made in this Area: although the failure by English law to recognize such marriages
has been admitted as a breach of human rights (high court judge Mrs. Justice Eady DBE) and
the LC is undertaking a review of marriage law in consideration of this practice, it is still not a
legally recognized ceremony for solemnization under s. 49 MA 1949 at the time and as such
any argument to declare a valid marriage that is humanist in nature will be struck down: R
(on the application of Kate Harrison and others) v Secretary of State for Justice and others [2020]
EWHC
Sham marriage: fail as it would have complied with the formalities/hallmarks of a valid marriage
(unlike non-marriage) it’s just the purpose behind it is to avoid immigration procedure to acquire
citizenship status. It is valid, but designed to cheat the immigration law procedure and so conflicts
with the ordinary purpose of a marriage
Note: R can also attempt to use the presumption of marriage (Bath 2000); however,
this requires long cohabitation and most exam questions go ahead by a few month
and don’t even cross 5 years in alternatives
VOIDABLE MARRIAGE GROUNDS: S.12 (A-H) MCA 1973
S.12 (1) (a): Incapacity to Consummate
1. Definition of consummation:
a. voluntary sexual intercourse between husband and wife after they are married…
expounded by case
b. Dr. Lushington, in D v A [1845]: Consummation requires intercourse that is ‘ordinary and
complete’ rather than ‘partial and imperfect’
c. Use S v S (1963) – malformed vagina constituted an incapacity
d. Highlight that both parties can apply here and advise party that R can use this ground too
All rights reserved for the purpose of Night Owls Members ©
2. Type of incapacity
a. Physiological or Psychological
S.12 (1) (b): Willful refusal to Consummate without just Cause
1. Definition of consummation:
a. voluntary sexual intercourse between husband and wife after they are married…expounded
by case
b. Dr. Lushington, in D v A [1845]: Consummation requires intercourse that is ‘ordinary and
complete’ rather than ‘partial and imperfect’
2. Define willful refusal: Horton v Horton [1947]: requires a ‘settled and definite decision come to
without just excuse’; there must be more than a temporary unwillingness and shyness.
3. Petitioner cannot rely on their own refusal: Ford v Ford [1987]
4. Just Excuse:
a. Religious Reasons…arranging ceremony
b. By Agreement…
i. Ok on a religious basis but generally against public policy
ii. only allowed for Companionate Marriages (old people)
often times P will rely but will have no just cause thereby satisfying the ground to make it possible for
R to use
S.12 (1) (c): Lack of Consent:
Duress
1. Hirani v Hirani (1982) objective test: Ormrod LJ ‘destroy the reality of the consent and overbear
the will of the individual.’
a. The operation of the test is to focus on the effect of the threat rather than its nature. You
want to find out if the effect of the perceived duress is so much so as to destroy the volition
of the party.
b. Find the threat -> then its nature -> identify effect to see if will was overborne
2. Identify the threat and its effect on P or R: the facts may be too vague and so you may have to
leave it open
a. Did they give up being with someone else? Was there a threat of punishment?
b. Social Ostracism? - Hirani v Hirani [1982]
c. Loss of Money/Gift/Inheritance? - Mahmood v Mahmood [1993]
d. Severe Emotion Pressure - P v R (Forced Marriage: Annulment: Procedure) [2003]
i. Bring Shame to Family - Mahmud v Mahmud [1994]
All rights reserved for the purpose of Night Owls Members ©
ii. Parents Threatened to Kill Themselves - NS v MI [2006] EWHC
3. Was duress self-imposed?
NOTE: forced marriages do not affect the validity, but the conversation in nullity just provides that if
such is proven, it may trigger other areas of law (domestic violence, criminal) for additional protection as
duress is a form of abuse.
In the event that a forced marriage is found, in additional to the annulment, the person may be able to
get other remedies under the other 3 statutes for civil and criminal assistance.
All rights reserved for the purpose of Night Owls Members ©