THE VALIDATION OF VOID MARRIAGES
| Date | 01 November 1968 |
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01216.x |
| Published date | 01 November 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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