Void and voidable marriages

A marriage may be annulled if the marriage is void or voidable:

1. •
a void marriage is one that is regarded by the court as never having taken place and is void at its
inception—a decree is simply declaratory
2. •
a voidable marriage is one that will be regarded as a valid marriage subsisting until a decree
annulling it has been pronounced by a court of competent jurisdiction
The Matrimonial Causes Act 1973 (MCA 1973) sets out the grounds on which a marriage may
be void or voidable. Corresponding provisions are set out in the Civil Partnership Act 2004 (CPA
2004). See: Nullity provisions—civil partnership. There are specific provisions relating to
marriages instituted and celebrated before 1 August 1971, but they are not dealt with here,
reference being made solely to marriages celebrated after 31 July 1971. The nullity grounds for
marriage are detailed below.
See Practice Note: Void and voidable marriages.
The court may exercise its powers under MCA 1973 (or in the case of civil partnership under the
correspondingCPA 2004 provisions) to make orders for financial provision whether the marriage
is found to be void or voidable.
The grounds on which a marriage is void
There are three grounds on which a marriage celebrated after 31 July 1971 is void under English
internal law:
1. •
the marriage is not valid under the provisions of the Marriage Acts 1949 to 1986: this includes
where the parties are within the prohibited degrees of relationship, or either party is under the
age of 16, or the parties have married in disregard of certain requirements as to the formation of
marriage
2. •
at the time of the marriage either party was already lawfully married or a civil partner
3. •
in the case of a polygamous marriage entered into outside England and Wales, either party was at
the time of the marriage domiciled in England and Wales
See Practice Note: The grounds on which a marriage is void.
The grounds on which a marriage is voidable
There are eight grounds on which a marriage celebrated after 31 July 1971 is voidable under
English internal law:
1. •
the marriage has not been consummated owing to the incapacity of either party to consummate
it: the court has to be satisfied on the higher standard of proof, beyond reasonable doubt, that the
spouse was at the time of the marriage and has been thereafter incapable of consummating it—
note this is not applicable to the marriage of a same sex couple
2. •
the marriage has not been consummated owing to the wilful refusal of the respondent to
consummate it—note this is not applicable to the marriage of a same sex couple
3. •
either party did not give valid consent to the marriage, whether through duress, mistake,
unsoundness of mind or otherwise; the otherwise provision may include being under the
influence of drugs
4. •
at the time of the marriage, either party was suffering from a mental disorder
5. •
at the time of the marriage, the respondent was suffering from venereal disease in a
communicable form
6. •
at the time of the marriage, the respondent was pregnant by someone else
7. •
an interim gender recognition certificate under GRA 2004 has, since the marriage, been issued to
either party
8. •
the respondent is a person whose gender at the time of the marriage had become acquired
under GRA 2004
See Practice Note: The grounds on which a marriage is voidable.
There is a general bar to obtaining a decree of nullity and the court will refuse to grant one if
satisfied that:
1. •
the petitioner with knowledge that it was open to them to have the marriage avoided, so
conducted themselves in relation to the respondent as to lead the respondent reasonably to
believe that they would not seek to do so, and
2. •
that it would be unjust to the respondent to grant the decree
There are additional special bars where a decree will be refused, such as where, in reliance on
certain specified grounds, eg venereal disease, the petitioner cannot satisfy the court that they
were ignorant of those facts at the time of the marriage.
In relation to certain other prescribed cases, including where the respondent is a person whose
gender at the time of the marriage is a gender acquired under GRA 2004, the court must not
grant a decree of nullity unless satisfied that the proceedings were instituted within the time limit
prescribed, unless leave (permission) can be obtained on the basis that the petitioner has at some
time in that period suffered from a mental disorder within the meaning of the Mental Health Act
1983 and considers that it would, in all the circumstances, be just to grant permission.
In relation to proceedings based on an interim gender recognition certificate being issued after
the date of the marriage to either of the parties, the court must refuse a decree if proceedings to
have the marriage annulled are not started within six months of the issue of the interim
certificate.
If there have been previous proceedings between the parties that would have resulted in a
recognition of the marriage, although the marriage may be void the parties may be estopped from
obtaining a decree of nullity