Annulments
In certain circumstances parties may wish to seek a Decree of Nullity rather than a Decree of Divorce. In comparison, relatively few Decrees of Nullity are sought.
There are two ways of obtaining a Decree of Nullity:
1. Declaring that a marriage is void from the outset, in which case it is treated as never having existed at all when the Decree is granted.
2. Declaring that a marriage is voidable, in which case it will be treated as being valid and subsisting until the date the Decree is actually obtained.
Void Marriages
A marriage will be void in situations which include the following :-
a) Where the parties are too closely related to each other.
b) Where either party was under 16 years of age at the time of the ceremony.
c) Where either party was already lawfully married.
If a marriage is void it never existed, so theoretically no Decree is actually needed to end it. However, since a Decree is needed if ancillary financial orders are required, a Decree is usually obtained. The procedure follows the standard one of Divorce requiring the issue of a Petition.
Voidable Marriages
A marriage will be voidable in situations which include the following :-
- Non-consummation – This can be either due to one or other of the parties’ incapacity, or their willful refusal. It should be noted that this ground does not give rise to a voidable Civil Partnership since there is no requirement is such a relationship for there to be consummation.
- Lack of consent, for example due to duress.
- One party was suffering from a mental disorder, such as to make them unfit for marriage.
- An interim gender recognition certificate was issued to the Respondent after the marriage.
As the marriage exists until such time as a Decree of Nullity is obtained, it is necessary for one or other of the parties to start the Petition procedure. A bar to obtaining a Decree can exist if the Respondent can satisfy the Court that the Petitioner, knowing that the marriage could be ended, behaved in such a way as to lead the Respondent to reasonably believe that they would not seek to end the marriage. In addition it would be necessary to show that it would be unjust to the Respondent to grant the Decree.
Generally the Petitioner must apply for the Decree within three years of the marriage, however the Court has discretion to extend the time limit on application to the Court. This time limit does not apply to non-consummation cases, nor to cases based on an interim gender recognition certificate.
Consequences of a Decree of Nullity
Ancillary Orders – The parties to a suit for nullity are still entitled to apply for all orders in relation to children, property and finance as are available on Divorce.
Children – Although legitimacy of children has little consequence in law today, under the Legitimacy Act 1976 the children born to parents who subsequently obtain a decree of nullity are automatically legitimate if the parents’ marriage is voidable, because the marriage existed up to the time of the Decree.
If the marriage is void the children will be legitimate if, at the time of conception (or celebration of the marriage, if this is later), both or either of the parents reasonably believed that the marriage was valid and the father was domiciled in England and Wales at the time of the birth, or if he died before birth, he was domiciled immediately before his death.
Wills – A voidable marriage will revoke a Will like any other marriage, however a void marriage does not have this effect as it never existed at all. When the Decree of Nullity is granted, whether in respect of a void or voidable marriage, it will have the same effect on a Will as a Decree of Divorce. This means that the former spouse is to be treated as having died on the date of the Decree.
It should be noted that neither spouse will be able to claim in the event of the other’s intestacy once the Decree is granted.
Choosing Nullity over Divorce
In some cases there can be grounds for both Divorce and Nullity. Whilst it used to be better to apply for Divorce in those circumstances as Divorce has the ‘special procedure’ which is cheap and simple and Nullity cases had to be heard in open Court adding to the cost and publicity, today most Nullity cases are dealt with under the same ‘special procedure’ as Divorce.
The benefit of Nullity over Divorce is that Nullity can be obtained in the first year of marriage whereas for Divorce the parties must wait for a year before making any Petition. Additionally, for some parties there may be religious reasons for wanting to have the marriage declared non-existent rather than dissolved.
This article courtesy of Shmuel Portnoy of Darlingtons Solicitors, who offer specialist divorce and family law advice. If you have an issue, get in touch with Darlingtons.
