Critical Analysis of the Law of Nullity of Marriage

Introduction

This paper purposes to provide a critical analysis on the following: “The Law of nullity of marriage is not only complex, it is unnecessary. More people divorce than apply to annul their marriage and in recent years, courts have been more willing to declare a union a “non-marriage.” As such, the concepts of void and voidable marriages could easily be abolished.” Since 1970s, there has been a rapid increase in the rate of divorce, partly because of the constantly changing social attitudes, and also the changes in the law, which include the voidable and void marriage concerns. However, it is also notable that some people have varied reasons for opting for a divorce, and this include religion and even culture, thus pushing them towards wanting their marriages to be nullified. This paper provides a detailed understanding of the family law jurisdiction.

Based on the English law, marriage is regarded as an agreement in which a man and a woman purpose to establish a legal relationship, where the man becomes the husband and the woman becomes the wife. Such a relationship imposes mutual duties, as well as rights. Marriage confers a status of married people to whom the law assigns either legal capacities or incapacities. According to Lord Penzance, he defined marriage as a voluntary union involving a man and a woman, in exclusion of others, in the case of Hyde v Hyde.

The law may declare a marriage null and void, to the effect that it does not take place as ab initio, whilst it may be voidable and still be subsist to a point the court decrees an annulment. This distinction is notably crucial, owing to the fact that when a marriage is regarded as void, then no valid marriage existed in the fast place. On the other hand, if it is voidable, then it is valid and also recognized by the law until the decree of nullity brings it to an end. The distinction noted in void and voidable marriages is well presented in the case of De Reneville v De Reneville. In this case, Lord Greene defined the distinctions and thus, it was noted that for a marriage to be regarded as void, there ought to have been a ceremony in which the purported parties got married, owing to the fact that void marriage is treated by the law are non-existent.

Many people regard the law of nullity to be complex and unnecessary, and as such, they opt to divorce, rather than apply to annul their marriage. It is evident that the nullity concept was developed, accompanied with some vigour. The Constitution Act 1995, as well as the Family Law (Divorce) Act 1996 make it possible for spouses to divorce or dissolve their marriage while they are still alive and such relief is considered to be comparatively cheaper, quicker, and also easier to handle s compared to obtaining a decree of nullity from the court of law. Owing to presently common cases of divorce, it is evident that even at the time of the introduction of the law of nullity, considering its complexity, it could be reasonably assumed that the nullity jurisdiction would have to be dwindled in the years to come.

In the case of Osman and Mourrali, Nygh J commented that he did not understand why an applicant could prefer to seek for a decree of nullity, owing to the fact that it was easy obtaining a divorce. He also stated that the ground for divorce for a separation of one year did not require an investigation for any form of guilt and also could not produce any form of stigma. However, some cultures and faiths have stigmas associated with divorce, especially for women. Most people believe that obtaining a divorce rather than a decree of nullity would prevent or reduce social stigmatization, as well as ostracism of a failed marriage. For this reason, most reason seek divorce rather than nullity decree, majorly because it is unnecessary. Moreover, it is significant to note that a nullity decree purposes to regard a marriage as void, wherefore, it establishes legal facts that a marriage had no legal impacts, yet this is opposed to the Family Law Act 1975, section 5. This section noted that the court has no jurisdiction of deciding applications for marriage nullity or validity. It is often against the will of a majority of people, to declare that their marriage did not exist in the first place. Importantly, a decree of nullity fails to dissolve a marriage, just as a divorce does, owing to the fact that it acknowledges that prior to its dissolution, there was an existence of a marriage.

Nowadays, divorce courts do not only purpose to end marriages, rather they are more embroiled in various matters, which the involved parties cannot resolve, and these include issues such as child support, division of various matrimonial assets, as well as decision on custody matters. In this regard, family court judges opt to deal with matters of divorce, and it is evident that it involves three major types of action. The first action is the divorce itself, and it is a process where the marriage is ended and the absolute decree is as well pronounced. The second action is the ancillary relief, in which case, the matrimonial assets on the involved parties are divided and there is also financial provision, made to the parties and children in any case, they are also involved. It is evident that in the entire divorce process, this is the most contested part, owing to the fact that proceedings often continue well when the decree absolute has already been granted. Finally, there may be significant proceedings that relate to children, for instance, the party that will have the residence of the children, as well as contact arrangement of the parent that will be absent. Usually, it requires an agreement to resolve matters pertaining to children. However, whenever there is a dispute, the court purposes to decide such issues.

On the contrary, whilst considering the law of annulment, the former rule on annulment based its underpinnings as if the marriage had never existed from the beginning, and that being the major reason as to why most people preferred divorce to the decree of annulment. This was because it was time consuming, especially to prove to the court that even though the involved parties did not have a wedding, they were indeed married. Moreover, treating a marriage to have never existed brings forth unexpected and perhaps undesired impacts that related to legitimacy, and inheritance and so forth. Notably, the rule still applies in most instances, as courts are declaring marriages are void. However, based on the provisions of the Family Law Reform Act 1987, the court states that children of a void marriage should be “treated as” legitimate, in an instance where at the time in which they were conceived, both parties involved believed that they were married legally, even if the court considers it otherwise. For instance, in the case of Re Spence [1990] 2 FLR 278, CA, it was noted that although children born in a marriage were subsequently declared void, are to be regarded as legitimate, a marriage declared void should not in any instance bring forth any form of change in the status of other children born illegitimately.

In line with this, Matrimonial Causes Act 1973 amended under section 21 to 31 notes that having a court to grant an annulment decree provides the same powers in making financial provisions, as well as property adjustment orders, when there is need for a divorce. In addition, under the Matrimonial Cause Act 1973, section 16, the court notes that a marriage that is merely voidable and which has been annulled should be treated as though it had been in existence until the time in which the court decreed its annulment. Significant to note is the fact that the court of law is skeptical about void and voidable marriages, which then denotes that annulment requires a lot of processes, prior to which the court can decided to declare its decree on annulment.

Owing to the fact that the decree of nullity was designed, with an aim of meeting the needs of people who desired to annul their marriages, it is evident that it fails to cater adequately for many faiths, as well as non-religious beliefs in the current society and for this reason also, it is not regarded as necessary. It is also noted to be overly restrictive, as it makes provisions to take place in a tightly regulated manner. It is also evident that many person wish to have the opportunity of marrying somewhere more meaningful and personal, and this includes outdoor, yet the legal framework does not aid in this. According to the Marriage Act 1961 section 23B (1) (c), a marriage may not be considered official if certain formal requirements are not met, yet this deprives so many people of having the said meaningful and personal marriage. In this case, an annulment will involve many processes, rather than a divorce, which has entail no doubt that two individuals were legally married if both of them confirm the claim that they were. In the end, a decree of annulment has brought forth uncertainties, which has led some people to find out unexpectedly that their marriage is not based on a legal ground. The law of annulment fails to protect the interest of individuals, unlike divorce, and as such, it encourages sham, as well as forced marriages, by ensuring that only the individuals that are free and eligible to marry are allowed to. However, it is of importance that a legal framework should allow people to marry according to their wishes and beliefs, yet a decree of annulment does not provide people with such a privilege, which then forces people to opt for a divorce instead of annulment, thus making the concepts of void and voidable marriages could easily be abolished.

Conclusion

Noteworthy, considering the law of annulment, the court considers a marriage as either voidable or void. On the other hand, with divorce, the court recognizes a marriage a legal institute, but then terminates the marital status whilst deciding on issues related to property, support, as well as child custody. This paper makes it evident that in the recent years, courts have become more than willing to declare a union a non-marriage, many people have decided to go the divorce way, in order to avoid concepts of void and voidable marriages, which are unnecessarily restrictive, outdated, as well as failing to serve the societal diverse needs. It should then be noted that solution lies with a full-scale reform in this sector of law, in which case, there is need to make specific proposals regarding how the law should change, in order to achieve a modern legal law relating to marriage, rather than opting for a decree of nullity.

References

Statutes

Family Law (Divorce) Act 1996

Family Law Act 1975 (Cth) section 51

Family Law Reform Act 1987

Fifteenth Amendment of the Constitution Act 1995

Marriage Act 1961 section 23

Matrimonial Cause Act 1973, section 16

Matrimonial Cause Act 1973, section 21-31

Cases

De Reneville v De Reneville [1948] 1 ALLER 56, 60 CA

Hyde v Hyde (1866) LR 1 P & D 130, 133

Osman v Mourrali (1989) 96 FLR 362

Re Spence [1990] 2 FLR 278, CA

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