Statutes

Published date01 December 1937
DOIhttp://doi.org/10.1111/j.1468-2230.1937.tb00020.x
Date01 December 1937
Dec.,
1937
MODERN LAW REVIEW
23
I
STATUTES
The
Matrimonial
Cause8
Act,
1937
According to
its
preamble the Matrimonial Causes Act,
1937.
was
enacted for
a
variety of purposes, all of them highly commendable, but
difficult to reconcile in view of the deep differences of public opinion with
respect to matrimonial law. The objects
of
the Act are
:
The true support
of
marriage, the protection of children, the removal of hardships, the
reduction of illicit unions and unseemly litigation, the relief of conscience
among the clergy and the restoration of due respect for the law. In order
to achieve these objects the Act does not confine itself to a reform of divorce
law but makes in many respects much the most important inroad ever made
since
1857
into matrimonial law, codified in the Judicature Act,
1925,
and
in the Summary Jurisdiction (Separation and Maintenance) Acts,
1895
I.
The question of the essential validity of a marriage appears to be
somewhat neglected in the text books as well
as
in academic treatment.
It
seems that according to English law, apart from non-age, lunacy, con-
sanguinity and existence of
a
previous marriage, the only grounds on
which a marriage was void were hitherto mistake
'as
to the identity
of
the
other party or the nature of the ceremony, or threat and duress, while the
mamage was voidable only in cases of physical impotence of either spouse.
Section
7
adds a series of new grounds of voidability. The most important
of
these are certain mistakes as to the personal qualities of the other
spouse. While, however, a number of continental systems of law, as for
instance, the German Code
(s.
1333)
and the Swiss Code (Article
124)
make
an essential mistake as to the personal qualities of the other spouse a general
ground of voidability, the new Act enumerates the types of defects which
must have existed at the time of the marriage without the knowledge of
the petitioner in order to make the marriage voidable. Only
if
either the
petitioner or the respondent was
of
unsound mind or a mental defective
or subject to recurrent fits of insanity or epilepsy, or
if
the respondent
suffered from venereal disease in
a
communicable form can the marriage
be
avoided. There
is
one further ground on which a husbandcanavoid
the mamage, namely
if
his
wife was at the time of the marriage pregnant
by another man. This provision overrules the decision in
Moss
v.
Moss,
[1897]
P.
263.
In all these cases proceedings have to be instituted within
a
year from the date of the marriage and the aggrieved party is precluded
from bringing the petition
if
marital intercourse has taken place with his
or her consent after the discovery of the defect of the other party.
If
one
compares these new provisions with some of the corresponding provisions
prevailing on the Continent, it affords another striking illustration of the
fact that the discretion granted to the English judge is frequently much
less extensive than that given to the judges
of
some Continental countries.
Another ground of voidability newly introduced by
s.
7
is that the marriage
has not been consummated owing to the wilful refusal of the respondent.
One should have thought that this would have been treated more properly
as
a ground for divorce
as
in French and German law. Possibly the influence
of the Canon Law with
its
rules about
malrimmium raturn
sed
non consum-
matum
may have had somethihg to do with this new enactment.
It
is
somewhat anomalous that non-consummation caused by wilful refusal is
only a ground of voidability within one year from the date of the marriage
to
1925.

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