STATUTES
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01319.x |
| Date | 01 January 1972 |
| Published date | 01 January 1972 |
STATUTES
THE
NULLITY
OF
MARRIAGE
ACT
1971
THE
changes in the law effected by this Act
follows. can be summarised as
(1)
Grounds
unsoundness of mind,
or
otherwise,
is
henmforth
which a marriage is voidable, not void.3
and female, is void.“
(a) Lack of consent, whether in consequence
of
duress, mistake,
a ground upon
(b)
A
marriage, the parties
to
which are not respectively male
1
Which came into force
on
August
1,
1971. The Act substantially implements
the Law Commission’s
Report
on
Nullity of Marriage, Law
Corn.
33.
For parliamentary debates, see: H.C.Deb., Vol. 810, col. 1162 (Second
Reading), Standing Committee C Reports, Vol. 814, col. 1827 (Report and
Third Reading); H.L.Deb., Vol. 317, col. 798 (Second Reading), Vol. 318,
col. 928 and col. 1595 (Committee), Vol. 320, col. 533 (remaining stages).
This note does not deal with some controversial features of the Law Commis-
sion’s report
(e.g.
the insistence that non-age should make
a
marriage void)
which were not debated during the passage
of
the Bill.
2
i.e.
in the case of marriages taking place after the commencement of the Act,
the operative date for the application of the grounds:
8s.
1
and 2. In the
case of
bars
to relief, the general rule
is
that the Act’s provisions apply in
proceedings
instituted
after the commencement, subject to two exceptions
:
(a)
the bars contained in
s.
9
(2) of the Matrimonial Causes Act 1965 continue to
apply
if
relief is sought under that section
in
respect
of
a
marriage celebrated
before the commencement; (b) collusion is abolished even in respect
of
pro-
ceedings instituted before the commencement: see
ss.
3,
6.
The new rules
about the
eflect
of
a
decree apply to all decrees
granted
after the commence-
ment:
s.
5.
3
Such marriages were void at common law, hut ratifiable. Dicta in some
recent cases
(e.g.
Parojcic
v.
Parojcic
[1958]
1
W.L.R. 1280)
to
the contrary
seem
to
be based
on
a
fallacious analogy with the law of contract, rather
than an inquiry into the doctrines of the ecclesiastical court; see
s.
22 of the
Matrimonial Cau&s Act 1857, and Tolstoy (1964) 27 M.L.R. 385. The Law
Commission had originally favoured the view that where the lack of consent
arose from insanity, the marriage should remain void
:
Published Working
Paper
No.
20, para. 69. The change of view was based
(inter
alia)
on
the
Lact that marriages of insane persons may benefit them, and hence third
parties should not be allowed
to
interfere: Law Com. 33, para.
14.
But the
door may have been opened to mercenary matches between aged lunatics and
those looking after them:
cf.
Re
Park
[1954]
P.
112.
4
St4atutory effect is thus given to the decisions
of
Ormrod
J.
in
Corbett
v.
Corbett
[1971]
P.
83
and
Talbot
V.
Talbot
j‘1967)
111
S.J.
213. It will be
noted that the Act only applies
if
there
is
a
marriage,”
so
that
(semble)
a
decree could only be obtained
if
there had been a ceremony between two
persons
on
whom the status of husband and wife
might
be conferred, and not
if, for example, two homosexuals went through
a
marriage ceremony:
cf.
R.
v.
Bham
[l966]
1
Q.B. 159. Under the Bill
as
originally drafted, tran-
sexuals would not have been able to obtain
a
nullity decree (as distinct from
a
declaration of status):
see
Law Com. 33, para. 32. The present provision
was introduced
by
amendment in the House
of
Commons (the Report debate
contains much interesting information).
It
is
hoped that the practical result
of introducing this ground will be that such oases will be brought
on
the
ground of incapacity, to avoid publicity;
if
the special ground had been
omitted, an incapacity petition might have been defended
on
the basis that the
57
58
THE
MODERN
LAW REVIEW
VOL.
36
(c)
Ik
is no longer a ground for annulment that either party was
at the time of the marriage subject
to
recurrent attacks of epilepsy.
The Act’s codification is exhaustive of the grounds upon which
a
decree
of
nullity can be pronounced on the basis of English
municipal
(2)
Bars
(a) The bar of approbation is replaced by an absolute statutory
bar to annulment of a voidable marriage
if
(i) the petitioner with
knowledge that
it
was open to him
to
have the marriage avoided,
so
conducted himself in relation to ‘the respondent as to lead the
respondent reasonably to believe that he would not seek
to
do
so;
and
(ii)
it
would be unjust to the respondent
to
grant the decree.
It
is kherefore no longer a bar that the petitioner has represented to
outsiders that the marriage is valid.?
(b)
It
is an absolute bar to petitions based on (i) lack of con-
sent, (ii) mental illness, (iii) venereal disease, (iv) pregnancy
per
alium
that proceedings were not instituted within three years
of
the marriage.8
(c) The fact that the petitioner was, at the date
of
the marriage,
aware of the facts is no longer a bar
to
a petition based on mental
illness
g;
but the bar remains
if
the ground
is
either (i) pregnancy
per
alium
or
(ii) venereal disease.1°
(d)
It
is no longer a bar to
a
petition on any ground that marital
intercourse has, with the consent of the petiltioner, taken place
since he discovered the existence of the grounds for
a
decree.” The
respondent may however be able
to
rely on the
cc
approbation
’’
bar,’= which can be pleaded whenever the marriage is voidable.
(e) The bar of collusion has been ab01ished.l~
only relief available in transexual case8 was
a
declaration, since the
respondent could then avoid having any order for financial provision made
against him.
5
As distinct from
B
declaration
as
to status under R.S.C., Ord. 15,
r.
16.
It
is proposed to make it clear
by
rule that
if
the
court
has jurisdiction to grant
a decree (with the consequence that ancillary orders
may
be
made
for
financial provision and otherwise) it cannot make a bare declaration (see
per
Lord Hailsham L.C., H.L.Deb., Vol.
318,
001.
936) thus confirming the
correctness of
Kassim
v.
Kussim
[1962]
P.
224,
and
Corbett
v.
Corbett
(supm)
on
this point.
6
But
not
where the English
courts
have
to
apply foreign law:
s.
4.
7
The object of this provision is (a) to replace the obsaurity of the old bar of
approb,ation (under whatever name) by the clarity of
a
modern statutory
provision, (b)
to
remove
any
reference to public policy from the bar:
cj.
W.
v.
W.
[1952]
P.
152, and see generally Law
Corn.
33, paras.
39-45.
8
B.
3.
This replaoes the present one-year time bar under
8.
9
of
the Matri-
monial Causes Act 1965. (There was
no
time limit
,as
such under the old
law
if
the
petition was based
on
lack
of
consent: the new provision will
operate
as
a
substitute for the canon law doctrine of ratification.)
against attempts at reconciliation
:
see
Law Com.
33,
para.
81.
9
For reasons,
see
Law
Corn.
33, para.
78.
10
8.
3
(3).
11
The main reason
for
making the change was that the old rule militated
12
S&
supra,
2
(a).
13
s.
6
(1); it is also abolished as
a
bar
to
proceedings for presumption of death
,and dissolution under
s.
14 of
the
Matrimoni.al Causes Act 1965
:
s.
6
(2).
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