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Void and voidable marriages

Void and voidable marriages

A void marriage is a marriage that is invalid as they are considered to be unlawful. Under these circumstances, the marriage is void from the outset.

However, a voidable marriage is one that is flawed in its validity but continues to exist until a Nullity of Marriage Order is pronounced.

How and when can you annul a marriage?

The process for legally terminating a marriage which void or voidable is known as annulment (sometimes known as ‘nullity’). These proceedings are rare but may be appropriate where parties have cultural or religious reasons for opposing divorce or dissolution.

In order to start nullity proceedings, you’ll need to show that the marriage:

You can apply for annulment in the first year of your marriage or any time after. However, if you apply years after the wedding, you might be asked to explain the delay to the court.

What are the grounds for annulment?

Sections 11 and 12 of the Matrimonial Causes Act 1973 set out the grounds whereby you can apply for an annulment if you can prove your marriage is void or voidable.

Where marriage is not legally valid – ‘void’ marriages:

The five grounds where a marriage is ‘void’:

  1. you are already married or have entered into a civil partnership
  2. you are closely related and prohibited from marrying each other. For instance, a father and a daughter or a brother and a sister
  3. either one of you was under 16 at the time of the marriage
  4. the marriage was a polygamous one that was entered into outside England and Wales, while at least one of you was living in England and Wales. Please note that there are some circumstances where a polygamous marriage will be valid so it is always best to take specialist advice.

When the courts rule that a marriage is indeed void, it is treated as though it never happened but you will still need to apply for a Nullity of Marriage Order this will allow you to remarry.

Where marriage is ‘voidable’:

The seven grounds where a marriage is ‘voidable’:

  1. the marriage was not consummated
  2. you were pressurised into getting married
  3. one of you was suffering from a mental health issue at the time of marriage (however, this would need to be a serious medical disorder within the meaning of the Mental Health Act 1983)
  4. your spouse had a sexually transmitted disease when you got married and you did not know about it
  5. your wife was pregnant by another man when you got married
  6. one of you had undergone gender recognition before marriage and had not told the other
  7. an interim gender recognition certificate was issued to a party after the marriage

Unlike void marriages, a voidable marriage will be seen by the law as having been valid up until the date of annulment.

What about civil partnerships?

A civil partnership must meet a specific criteria for it to be considered legal, namely:-

If the civil partnership does not meet this criteria then you can apply to the court to have the partnership annulled.

How to apply for an annulment

You can apply to have your marriage or civil partnership annulled as soon as you get married / enter your civil partnership. You will be required to fill in a nullity application form and send two copies to the court (always keep your own copy). The cost of the application is £593.

Once you have submitted your nullity application, the court will send you notice that your application been issued.

The other spouse or civil partner must then respond to your application within 14 days stating whether they agree with the marriage being annulled. Once they have responded, you are then able to apply for a conditional order (previously ‘decree nisi’) which will confirm the court accepts the marriage is applicable to be annulled. You must then fill in an application for a conditional order to receive such an order.

Following this, you must wait six weeks after the conditional order before you can apply for a final order (previously ‘decree absolute’). This final order is the legal document which states the marriage has been formally annulled. You must fill in the final order application form in order to receive such an order.

Once the application has been submitted to court, it will check if there are any reasons why the marriage cannot be annulled. If there are not, then the court will issue a ‘decree of nullity’ or ‘nullity of marriage order’. This confirms that you are no longer married. If your marriage was void then the decree or order will confirm that you were never legally married.

Before you seek an annulment, it is best to seek specialist family law advice. For advice and guidance on annulment proceedings please speak to a member of our Family Law Team.

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