THE OPERATION OF NULLITY DECREES
| Published date | 01 January 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00072.x |
| Date | 01 January 1948 |
| Author | William Latey |
CORRESPONDENCE
THE OPERATION
OF
NULLITY DECREES
1
Dn.
JOIINSON’S
BUILDINOS,
November
22,
1947.
TP.BfPI,E,
E.C.4.
The Editor,
Modern
Law
Review.
Dear Sir,
Mr.
F.
M.
Newark by his article in your issue of November
19.55
(which
I
have only just seen) has done
a
great deal to dispel the widely held Illusion
that in English law there is any justification for using the word
‘
voidable’
in refcrence to ma’rriagc ceremonies which are void for whatever reason.
Probnbiy the Illusion has become far too deeply entrenched to dispel altogether.
One finds
’
voidable
’
used, for instance, by no
less
a
jurist than
Dr.
Cheshire
in his
Private International Law
in reference to ceremonies which the courts
have held that there was no marriage at all because of impotence, wilful refusal,
insanity and other causes.
In
tile
Law Quarterly Review,
October
1947,
Mr.
J.
F.
Garner cites with
approval the distinction made by the late Bateson,
J.,
between ‘void’ and
‘
voidable
’
marriages in
Inverclyde,
[
19811
P.
29,
although both thht decision
and its
ratio decidendi
have censed for
a
long time to be followed in the
Divorce Court, and in fact it received its quietus in
Hutter,
[I9441
P.
96.
I
am not unmindful of the fact that in
De Retreville,
a recent nullity suit,
Jones,
J.,
bnsed his decision as to domicile on the distinction between ‘void‘
and
‘
voidable’. An appeal
is
pending in this cnse. In
Adnms,
[
19411
1
K.B.
636,
Scott,
L.J.,
approached the point very cautiously when he said: ‘The
use
of both terms in connection with the status of marriage has received
judicial sanction, and is consonant with the ordinary English meaning of the
words, although it lends Itself to misuse, and may cause confusion
’.
The point
in that case was that if during the continuance of
a
putative marringe the
male
spouse
covenants by way of
a
deed of separation to make provision for
the female spouse, and tile marriage
Is
thereafter annulled on the ground
of the female’s incapacity, then the deed is binding notwithstanding that there
was no marriage. Tile Court of Appeal approved the decision to the same
effect of Farwell,
J.,
on the same point in
Fowke,
[1938]
Ch.
774,
in which
I
had urged the contrary. Really the decisions in
Adanis
and
Powke
were
of
the
same kind as in
Dodworth
v.
Dale,
[I9861
2
K.B.
503
(concerning the
incidence
of
tax where a marriage is annulled).
Mr.
Newark quite rightly
says (at
p.
206)
that ‘such cases prove nothing’ in regard to tile non-existence
of
a marriage once
it
has been declared void. In
Newbould
v.
Att.-Uen.,
[l98l]
P.
76,
Lord Merrivaic emphasised the retrospective effect of a decree
of
nullity of marriage for incapacity in rendering valid
a
later marrlnge by the
male partner with another woman before the earliet marriage was annulled.
This important decision was cited by Sir Vnlentine Holmes in
Adam
but not
mentioned by any of the three Lords Justices in their judgments.
Newbould
was also cited with approval by Andrews, L.C.J., in
Mauon
v.
Mason
and
Pennington,
[1944]
N.I.I,.IL.
184
(cited by
Mr.
Newark at
p.
217
in another
connection).
This
was a case in which
a
decree nisi of nullity was made in
July
1984,
the male
spouse
married another woman on January
10,
198Ei,
nnd
the decree
of
nullity was made absolute on January
21,
1986.
Thus
It
was
70
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