THE VALIDATION OF VOID MARRIAGES

DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01216.x
AuthorD. Tolstoy
Publication Date01 Nov 1968
THE VALIDATION
OF
VOID MARRIAGES
A
LAWYER
instinctively repels the idea of validation of
a
void
marriage and his first reaction would probably be
to
echo the
American view that
ratification of nothing is unthinkable and
impossible.”
As
was asked
with much emphasis by counsel during the argument, how could
the marriage be validated if it was altogether void? Such a pro-
position,
it
was contended, finds no support from
reason
’.”
To
this contention Lord O’Brien replied
2:
I
am afraid that there are
many things lying at the root, at the foundation, of the Christian
religion, mysteries
of
faith, for an elucidation of which we should
appeal to
reason
in vain. The incredulity of scepticism is caused
by making
reason
the sole and exclusive touchstone
of
faith.”
In truth, our law of marriage is, subject to statutory modifica-
tions and additions, the canon law of the Church of England as
administered by thc Ecclcsiastical Courts prior to the Matrimonial
Causes Act
1857,
and marriage, which was a sacrament until the
Reformation,‘ finds its roots reaching deep into the mysteries of
the Christian faith. One such mystery was the doctrine of the
ratification of a void marriage.
It
was a doctrine of the canon law
of the Roman Catholic Church, which was adopted by English
ecclesiastical law, that
a
marriage void on the ground that there
was no consent at the time of its celebration could be ratified by
a
consent voluntarily given subsequently, whereupon the void
marriage became valid. The absence
of
consent could result either
from a party’s inability to consent because of his unsoundness of
mind
or
from being temporarily deprived of his freedom
of
choice
by fear, duress
or
other circumstances, such as a mistake as
to
the
identity of the other spouse
or
as to the nature
of
the ceremony. In
the former case the void marriage could be ratified during
a
lucid
interval
or
when sanity returned and, in the latter case, when the
In the words of Lord O’Brien
C.J.2
:
1
Wiley
v.
Wilq
(1919)
123
N.E.
252, 285.
2
Ussher
v.
Ussher
[1912]
2
I.R.
455,
480.
3
R.
v.
Millis
(1844)
10
C1.
&
Fin.
531, 614, 657,
678,
680,875.
4
Marriage ceased
to
be a sacrament by Article
25
of
the Thirty.nine Articles;
Fender
v.
Mildmay
canon law
of
the
Roman
Catholic Church continues to allow the validation
of
marriages void
for
lack of consent and
of
certain other void marriages:
Codez
Juris
Canonici,
canons
1133-1137;
Canon
Law
by Bouscaren and
Rllis
(1946),
pp.
568-573.
“A
lunatic during his lunacy is
not capable
of
marriage, but
in
lucid intervals he may; and
if
Ruch a marriage
should be had during the Iiinacy, the civilians held, that by subsequent
con-
sent it may he
medo
good,
as
the marringe of
on
ilfant before the age
of
discretion may be made good by
a
subsequent assent
:
Bhelford’s
Mamiage
and
Diworce
(1841),
p.
197;
see
also
Ellis
V.
Bowman
(1851)
17
L.T.(o.fl.)
10.
19331
A.C.
1,
27.
5
Decretnls
of
Pope
h
regory
IX,
1227,
Bli.
IV,
tit.
7,
ch.
2.
The present
6
Mrs.
Ash’s
Case
(1702)
Freeman
C.C.
259.
656

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