Voidable Marriage - Coursework Example

Voidable Marriage The formalities for the creation of a valid marriage are set out in the Matrimonial Causes Act of 19731 and the Civil Partnership Act of 2004.2 A failure to strictly adhere to those requirements could render the marriage voidable. This amounts to a formal declaration by the Court that the marriage is not legally valid; a marriage will also be voidable only by one of the parties. The Matrimonial Causes Act3 also sets out the grounds when a marriage will be voidable: (a) if either party is unable to, or willfully refuses to or does not consent to consummation of the marriage (b) if either of the parties suffers from mental illness or venereal diseases, or (c) if the wife is pregnant by another man. A marriage that is found to be bigamous may also be voidable. While a polygamous marriage cannot be conducted within the UK and be recognized under the civil law of England and Wales, English law does recognize and render voidable, marriages that are contracted abroad and the parties are not domiciled in the UK at the time of the marriage4. The argument for abolition of the voidable marriage: The major question that must be considered is whether a declaration of nullity of marriage is valid at all, in the present day context where more couples are cohabiting rather than entering into marriage5. Social attitudes towards the necessity for marriage are changing and cohabitation relationships are becoming increasingly acceptable, although the question of whether increasing cohabitation is acceptable or just tolerated is at dispute.6 Therefore, within such a changing social context, when the relative validity and necessity for marriage itself is disappearing, it seems redundant to make provision for the parties to approach the Courts for a formal voiding of the marriage. Secondly, it must be noted that one of the major reasons why a legal decree is sought from the Courts for voidability of marriage is in the allocation of financial relief. While the formal decree is sought to remove any doubts about the existence of marital ties, this is not the sole reason for pursuing voidability; rather it is the discretion allowed to a Court that is annulling a marriage to pass orders for financial relief to the parties, on grounds similar to that allowed in separation by divorce. A decree of nullity of marriage is a rare phenomenon in these days. Marriage was meant to alter the legal status of the parties and married couples enjoy various kinds of tax benefits that may not be available to unmarried couples. A spouse also has the legal right to provisions made out of her/his partner’s estate if the spouse dies without having executed a formal will. One example that may be cited is that only a spouse can claim certain kinds of damages for bereavement, through the provisions of the Administration of Justice Act of 1982. Similarly a surviving partner would have the first right over any residential property in which the couple had been living, in the event of the partner’s death. However, with the passage of the Law Reform (Succession) Act of 1995, it is now possible for the surviving partner in a two year cohabitant relationship to seek provision from the deceased partner’s estate. An annulment of marriage is a rare event these days since divorce is more prevalent and the financial relief provided to marital partners is now proposed to be extended to cohabiting couples as well.7 For example, in the recent case of Stack v Dowden8 where the Court passed orders on financial distributions, the parties were a couple that had been cohabiting for nineteen years and had four children. Since one of the major reasons for mooting nullity of marriage, through the facility of voidability open to the parties, was to seek allocation of financial relief from the Courts, it now appears that this provision is amply satisfied through other provisions as indicated above, thereby rendering the voidability aspect redundant and scarcely used. Thirdly, the grounds of non consummation were traditionally the basis upon which parties exercised their right to seek to void their marriage, especially in a case where the partner willfully refused to consummate the marriage or indicated a clear determination not to do so9. In the case of Horton v Horton10 Lord Jowitt LC stated that the willful refusal plea could be allowed only when “a settled and definite decision” could be deemed to have been made “without just excuse” and while taking into account the entire history of the marriage. However, in the present day context, there may be few, if any, marriages which remain unconsummated, since couples are cohabiting before marriage and separating when they experience the kind of problems that would have once called for formal annulment. Here again, the question of allowing for voidability appears to be a redundant one. Lastly, a marriage may be voidable only at the will of the parties, since those couples who opt to remain together despite any advantages that may result from declaring the marriage void. In the case of re Roberts11 the clear distinction between void and voidable – which is only at the instigation of the parties – was clarified. In the present day, where the requirement for marriage is less rigid and where couples have the option to freely cohabit and separate as and when they wish, it appears that the execution of the will of the parties is quite amply served without the need to allow voidability of the marriage through the courts as well. Conclusion: On the basis of the above submissions, the need for retaining voidability itself is questionable. Within the present day context, where social equations have changed considerably from the canon law of the 1800s when the concept was devised, voidability of marriages appears to be a redundant aspect that can well be dispensed with. In view of provisions for financial relief to cohabitants that are being mooted under new schemes for cohabitants12, coupled with existing provisions that are available upon separation through divorce for married couples, there seems to be no need to retain what is now an archaic concept. There is little advantage, if any, that is afforded by annulment in an era when few relationships remain unconsummated and other legal provisions exist for pursuing relief in those rare instances. Bibliography * Barlow, A, Duncan, S, James G and Park, A, 2005. “Cohabitation, Marriage and the law.” Oxford: Hart Publishing at pp 25-26 * Kiernan, K, 2001. “The rise of cohabitation and child bearing outside marriage in Western Europe.” 15 International Journal of Law, Policy and the Family 1. * Law Commission Consultation Paper: Cohabitation: The Financial Consequences of Relationship Breakdown (No 179). [online] available at: www.lawcom.gov.uk/cohabitation.htm * Lowe, N and Douglas, G, 1998. “Bromley’s Family Law” (9th edn) London” Butterworths at pp 50-52 Cases cited: * Ford v Ford (1987) Fam Law 232 * Horton v Horton (1947) 2 All ER 871 HL * Re Roberts (1978) 3 All ER 225, CA * Stack v Dowden (2005) EWCA Civ 857; (2006) 1 FLR 254 Legislation cited: * Administration of Justice Act of 1982 * Civil Partnership Act of 2004 * Law Reform (Succession) Act of 1995 * Matrimonial Causes Act of 1973 Read More