Void and Voidable Marriages

AuthorD. Tolstoy.
DOIhttp://doi.org/10.1111/j.1468-2230.1964.tb01035.x
Publication Date01 Jul 1964
THE
MODERN
LAW
REVIEW
Volume
27
July
1964
No.
4
VOID AND VOIDABLE MARRIAGES
THE grounds
on
which a marriage is voidable, as opposed to being
void
ab
initio,
are first, impotence and, secondly, the statutory
grounds laid down in the Matrimonial Causes Act,
1958,
s.
8
(wilful
refusal to consummate the marriage, unsoundness
of
mind, mental
disorder
or
epilepsy, the responden$ suffering from venereal disease
or
being pregnant by some
person
other than the petitioner).
In
addition, recent judicial dicta and textbooks have expressed the
view that there may be further impediments which render
a
mar-
riage voidable and not void; thus, it has been suggested that threats
and duress,’ fear: fraud: where one party is intoxicated‘
or
where there is a mistake as to the nature of the ceremony are
or
may be circumstances rendering the marriage voidable.
It
is
proposed to examine the law of nullity in an attempt to determine
what effect these further impediments have on a marriage and
inquire whether their presence renders the marriage voidable
or
void.
There is now a clear distinction between a void and a voidable
marriage.
A
void marriage
is
one which, owing to the presence
of
an impediment at the time of the ceremony,
will
be regarded by
every court in any case in which the existence of the marriage is in
issue as never having taken place and can be
so
treated by both
parties to
it
without the necessity of any decree annulling
it;
the
1
Halsbury’s
Laws,
3rd ed., Vol. 12, p. 225; Rayden, 9th ed.,
p.
78,
para. 12,
note (d)
;
Pafojcic
v.
Parojcic
[1958]
1
W.L.R.
1280;
Ross-Smith
v.
Ross-Smith
[196l]
P.
39
at
p.
67
(Willmer
L.J.
said:
In
Cooper
V.
Crane
[1891]
P.
369
.
.
.
the wife petitioned for
a
decree
of
nullity
on
the ground that her consent
was obtained by duress
.
.
.
jurisdiction was assumed without argument though
the marriage was merely voidable”;
in
Cooper
v.
Crane (supra)
it
was
not
stated whether the marriage there was void or voidable);
MahaderQan
v.
Mahaderoan
[1962]
3
All
E.R.
1108 at p.
1111.
2
Halsbury’s
Laws,
3rd ed., Vol. 12, p. 225; Rayden, 8th ed., p.
78,
para. 12,
note (a).
3
Jackson,
Formation and Annulment
of
Marriage,
pp. 192, 193.
4
Halsbury’s
Laws,
3rd ed., Vol. 12, p. 225.
5
Rayden, 9th ed., p.
77,
para,.
11,. note (h); Halsbury’s
Laws,
Vol.
19,
p.
775,
note (h); see also
Kasszm
v.
Kasscm
[1962]
P.
224
at p. 228.
385
VOL.
27
14

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