Jurisdiction to Annul a Voidable Marriage
| Published date | 01 November 1955 |
| Date | 01 November 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00330.x |
| Author | O. M. Stone |
604
THE
MODERN
LAW
REVIEW
\‘or..
18
“part of a decision
”
must clearly mean one,
or
more,
or
all of
the parts of a decision. Further, the inclusion of the two grounds
“some part of the decision
or
some step in the reasoning” can
only mean that even
if
a part of the decision is not demonstrably
wrong, and for that reason not able to be held
per
incuyiam,
it
may still be set aside
it
its reasoning is demonstrably wrong. This
statement must be qualified, however,
to
the extent that only the
steps in the rcasoning that can here be considered are those arising
as a result of ignorance
or
forgetfulness of some statute
or
some
binding authority-any other errors of reasoning can only be
rectified on appeal.
The import of this declaration is that the court has drawn a
distinction between a case where no argument at all has been
presented on a particular point, and one where the argument was
totally inadequate.
If
a relevant authority was not mentioned
the decision may be challenged; if
it
was mentioned, however
cursorily, the decision must stand. D. G. VALENTINE.
JURISDICTION
TO
ANNUL
A
VOIDABLE
MARRIAGE
LORD
GODDARD
C.J.
said recently,’ delivering the judgment of the
Court of Criminal Appeal, holding that a woman is incompetent to
give evidence
on
a criminal charge against her former husband
after she has had the marriage annulled on grounds of his
impotence:
“
Since the decision of the Court
of
Appeal in
that case,2 in
Adams
v.
AdamsS
and
De Reneville
v.
De
Reneville“
it
is, we think, settled that the courts now regard the
parties to a voidable marriage before decree to be for all purposes
truly husband and wife. Unless there is a decree they will live
and die as married persons with all the incidents that attach to
that estate. We think
it
clear that the reason for the incom-
petency applies to these persons with force
at least equal tos
the
case of divorced persons.
It
would be artificial
in
the highest
degree to apply a different rule in the two cases.
It
is with no
disrespect that one can say that what is artificial is the old form
of sentence in these cases, which in truth perpetuates a canonical
fiction.”
Before the decision in
R.
v.
Algar,
it may be doubted
if
the
tendency of the courts in purely domestic cases to equate the
annulment of a voidable marriage more nearly with the dissolution
of
a valid marriage than the annulment of a void one was as
1
In
R.
v.
Alga?
[1954]
1
Q.R.
279, 284.
2
Rr
Enorr
[1940]
Ch.
109
(C..i.).
8
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I
R.B.
630
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4
[I‘J.IA1
1’.
100
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