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Family Law Blog

Comment on divorce & family law 

Is my marriage void or voidable? The devil is in the detail

Is my marriage void or voidable.

As a family lawyer for over ten years I have frequently been asked by clients whether they can have an annulment, rather than a divorce. It seems like a simple question, but in order to answer their question I need to get into some legal niceties.

In the eyes of the law some marriages suffer from impediments which lead to them being either void or voidable, in which case a petition for annulment could be brought to end the marriage, this option is important for some people who wish to avoid the stigma of divorce, for example for religious reasons. If these impediments do not apply a divorce will be the only option for ending the marriage.

There is a difference between a void marriage and a voidable marriage.

A void marriage

Void marriages are void from the beginning and can, in theory, be treated by both parties as never having taken place, so they don’t even need to seek an annulment from the court. However, it is almost always advisable to do so, to provide some evidence that the parties are free to re-marry should they wish to do so in the future.  A marriage that could be void from the start could be for example, that one party was already married to another, or because one party was under age at the time, or perhaps they were not permitted legally to marry each other in the first place for (ie if they were related by blood).

A voidable marriage

A voidable marriage is valid unless and until a Decree of Nullity (an annulment, in other words) has been granted. There are various grounds upon which a marriage could be voidable, for example if one party had wilfully refused to consummate the marriage, or if one party was pregnant by someone other than their husband at the time of the marriage, or if one party did not give valid consent for example because of unsoundness of mind, mistake or duress, there are other grounds too but these are the main ones we come across.  Some grounds require the petition to be brought within 3 years of the marriage so it is important to take advice early to understand if these apply to your case.

Whether the marriage is void or voidable, if a petition for nullity is issued the parties can take advantage of the court’s powers to grant financial provision, just as they can with a divorce, so it is vital to take legal advice to explore whether you need to make a financial claim against your spouse when you apply for the annulment.

The message I’d like to leave you with is that you may be able to get your marriage annulled, but don’t just assume you can. Take advice and get the facts, it can save lots of worry and concern for both parties concerned.

Susan Harwood
Divorce & family lawyer, Truro

 

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