Capacity to Marry and Nullity

decree
Void/ voidable marriage
 Historical introduction
Failure to comply with rules governing formation
of marriage
Effect:- there will be no marriage.
No matter how long the couple has live as
husband and wife
Ecclesiastical Court would grant a decree
declaring the Union to have been and to be
absolutely null and void to all intents and
purposes whatsoever
De Reneville v De Reneville 1948
There was and never had been a marriage.
 Legal consequences
Children born out of this union become
illegitimate.
Thus not entitle to succeed to the parents
property
Anybody who had an interest in the matter
can petition for a nullity.
Can dispute validity of the marriage even
after the death of the parties
 Distinction between void and
voidable marriage
Void marriage
- no valid marriage ever existed
- any interested person may take
proceeding ( note changes of the
legislation)
- a decree of nullity is not necessary since
the marriage does not exist.
 Voidable marriage
- the marriage is valid unless annulled
- only parties to the marriage can take
proceedings
Unless a decree is obtained the marriage
remains in force
 Jurisdiction of court
Section 67 Extend of power to grant relief:-
- marriage is registered/ deemed to be
registered
- marriage is monogamous
- where both parties to the marriage reside
in Malaysia at the time of commencement
of the proceedings
 Person who can petition
Section 68
Any husband or wife may present a
petition to the court praying for a decree of
nullity in respect of his or her marriage
- changes the common law
- no third party allowed.
 Grounds on marriage is void
Section 69
1. parties are lawfully married and still alive
2. void because of age. Below 18 for male.
- below 16 for female or above 16 without
licence. Section 10
3.prohibited decree. Section 11(6)
4. gender.parties not male or female
5.Section 22(4) Marriage not following
procedure
 The rational of restriction
A. Religion
B. Genetic
- a higher chance of mutant genes being
present in 2 person with a close common
ancestors.
- the fact that there is a higher tendency
that the parties will be carriers of recessive
disease.
 c. Social policy
Main reason for prohibition for marriage within
affinity relationship.
This prohibition helps exclude disturbing sexual
relationship from the home circle.
Eg. A man who look at a young girl as a
potential bride when his role was that of a father.
Or the fact that their aunt has now become their
mother .( confusion when their biological mother
is still alive.
 Minimum age
Policy consideration.
Sexual intercourse with a girl below 16 is illegal.
- statutory rape.
- imprisonment until 20 years.
- 9 years is common.
- thus wrong to validate it by allowing marriage .
Compare with Islamic law.
 Grounds on which marriage is
voidable
Section 70.
- 6 grounds available.
- need to proof only one
 Incapacity to consummate
marriage
Main element:-
1.The issue is ability to have sexual
relation.
-sterility or barrenness is not enough
Ordinary and complete sexual
intercourse.
 Element 2
It require intercourse after marriage
Dredge v Dredge 1947 1 AER
The fact that the parties have had normal
intercourse prior to marriage is irrelevent.
 Element 3
The inability must be permanent and
incurable.
Incurable if any remedial operation is
dangerous.
Or if respondent refuses to undergo
operation.
D v D 1979.
 Element 4
Petitioner must prove incapacity exists.
Either party may petition.
The court have power to order medical
examination.
May draw adverse inference against a
party who refuses to be examined.
B v B 1901.
70 (b) Wilful refusal to consummate
Main element:-
1. There must be a settled and definite
decision come to without just excuse by
the respondent.
Horton v Horton 1947. 2AER.
- a question of fact.
- involved examination of the marriage
 Case illustration
Baxter v Baxter 1975
Ct held that the H claimed that his wife refused to
consummate the marriage may fail if he had not used
appropriate tact, persuasion and encouragement

Potter v Potter 1975

The parties failure to consummate the marriage originally
resulted from a physical defect in the wife. When this
was cured by corrective surgery the husband made one
further attempt to consummate the marriage which failed
because of the wife emotional state following the
operation. There after the husband refused to make any
further attempt. Wife fail in her petition.
 Element 2
If the respondent is physically unable to
consummate the marriage, he will
nevertheless be held wilfuly to have
refused to do so if he has refused to
undergo straightforward curative
treatment.
 Element 3
If there is just excuse for refusal to
consummate, then petition must be
dismissed.
- both parties agree not to consummate
until after civil ceremony is followed by a.
religious ceremony. Here just excuse not
to consummate.
 Extension of element 3
Refusal to go through a religious
ceremony or arrange a religious ceremony
will be deemed to be a failure to
implement the agreement by itself
Case :Tan Siew Choon v Tan Kai Ho
Case : Rathee v Shanmugan
Case : Kaur v Singh
 Element 4
There must be refusal to have intercourse.
Baxter v Baxter 1948
HL held : A refusal to have intercourse
unless a contraceptive sheath is used is
not a refusal to consummate marriage.
 Section 70 (c ) No valid consent
either party did not validly consent to it
whether in consequences of duress,
mistake, unsoundness of mind or
otherwise
 Duress and fear
Where a formal consent is brought about
by force, menace or duress resulting in a
yielding of the lips not of the mind , then it
is of no legal effect.

Szechter v Szechter
 Conditions to be satisfied
1. There must be fear over-riding the partys true
intent.
Case : Lee v Lee 1928
If there had been no wedding, there would
have been a funeral
Note:
But it is insufficient if the marriage is deliberately
entered into in order to escape a disagreeable
social situation or out of sense of obligation to
family or religious tradition.
 Case Singh v Singh
Ct refused to annul on the ground of
duress a marriage arranged by the parents
of 2 young sikhs. Although the bride had
never seen the husband before the
marriage and only went through the
ceremony out of respect for her parent and
the tradition of her people. No evidence of
fear here.
 Element no 2
Fear must be sufficiently grave ( subjective test
here)
The test is simply, whether the threat or
pressure is such as destroy the reality of the
consent and to overbear the will of the individual
.
Case : Hirani v Hirani
you had better marry somebody we want you
to, otherwise, pick up your belongings and go
 Element 3
Fear must arise from external
circumstances, but not necessarily from
acts of the other party
Buckland v Buckland
Scott v Selbright 1886
 Political duress
Szechter v Szechter

HvH
- Nullity granted under duress.
 Mistake
Vitiate consent given in marriage in the
following event :-
1.Mistake to the person as distinct from his
attribute
Singh v Singh
Wakefield v Wakefield
 Mistake as to the nature of the
ceremony
Can have the effect of invalidating the
marriage

Vallier v Vallier
Hall v Hall
Mehta v Mehta
 iii. Mistake as to the effect of the
ceremony
Will not invalidate the marriage because
you know you are getting married.
Kassim v Kassim
Way v Way
 Section 70 ( c ) Unsoundness of
mind
The parties must understand not only the nature of the
marriage but also to the duties and responsibilities of
marriage
Held : Durham v Durham
Bennet v Bennet
Parties married in 1965. Later W was admitted to mental
hospital. Even before that she used to be in and out of
mental hospital but H was unaware. H applied for nullity
on the ground of that W suffered unsoundness of mind.
Held : H petition rejected. Although W suffered mental
illness , she do understand her duty and responsibility of
marriage
 Section 70 (d) a mentally
disordered person.
Element :-
Capable of giving consent
Suffer mental disorder of a kind or such an
extent as to be unfit for marriage
Re Estate of Park 1954
He understand the duties and
responsibilities of marriage
 Section 70(e) veneral disease in a
communicable form
3 element
1. at the time of marriage.
- not after
- not before and cured
2. VD must be in a communicable form
3. Petitioner had no knowledge
- look at section 71(2)
Section 70 (f) Pregnancy per alium
At the time of marriage the woman was
pregnant by someone else other than the
petitioner
Element :-
1.the woman is pregnant by someone else
2. husband did not know that wife is
pregnant or if he knows he thought he was
the cause of it.Section 71(2)
 Cases
Stocker v Stocker 1966
Held : The fact that he knows that W is
pregnant is not in itself a bar. He must also
know that she is pregnant by another man

Smith v Smith
Knowledge of a reasonable man
 Section 71 :-Bars to relief
This section only operate if marriage is
voidable.
No bars if marriage is void.
The Act of approbation.
Section 71 (1) (a)(b)
- knowledge
- unjust to respondent
 Cases
Morgan V Morgan
DvD
Re L V L
 Effect of nullity decree
Section 73
Operate to annul marriage after grant of
decree. Before decree it is valid.
 Effect of legitimacy of children
Section 75
- status of children of voidable marriage
remain unchanged
- children of void marriage depends on
reasonable belief of either parent.
Case : Sherward v Sherward
 Effect on transaction made upon
marriage
Void marriage whole transaction
invalidated
Voidable marriage no changes
 Effect of decree on will
A will is automatically revoke by a later
marriage but a void marriage does not
result in revocation of prior will.
Voidable marriage will have that effect.
 Effect on maintenance
No provision on maintenance
Look at LRMDA