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Voidable marriages
Published online by Cambridge University Press: 18 January 2024
Abstract
This article critiques the decision of the Court of Appeal in Re SA (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003. In Re SA the Court of Appeal held that: (1) by operation of section 16 of the Matrimonial Causes Act 1973, a voidable marriage is not void at its inception and is therefore not caught by section 58(5)(a) of the Family Law Act 1986, and (2) the effect of section 16 of the 1973 Act is that a voidable marriage starts off fully valid but only on making a decree absolute of nullity becomes invalid. This article contends that the approach adopted by the Court of Appeal in SA is conceptually challenging, based on a misreading of the statutory language, and is directly contrary to long-established and powerful authorities.
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References
1 Not so: para 91 of NB v MI specifically refers to section 16.
2 I shall use the previous language of petition, decree nisi and decree absolute (as in use before the implementation of the Divorce, Dissolution and Separation Act 2020 on 6 April 2022) so that the old cases can be more easily read and understood.
3 cf. 39 Essex Chambers, Mental Capacity Report: The Wider Context, issue 134, September 2023, 22 which can be accessed here: <https://www.39essex.com/sites/default/files/2023-09/Mental%20Capacity%20Report%20September%202023%20The%20Wider%20Context.pdf>, accessed on 5 October 2023.
4 At that time the requirement of due form (forma) was minimal.
5 That is, an exchange of vows in the present tense, which constituted a marriage that was valid for all purposes in England and Wales before the Clandestine Marriages Act of 1753.
6 The other ‘new’ grounds were (i) that either party to the marriage was at the time of the marriage of unsound mind or a mental defective within the meaning of the Mental Deficiency Acts, 1913 to 1927, or subject to recurrent fits of insanity or epilepsy; or (ii) that the respondent was at the time of the marriage suffering from venereal disease in a communicable form; or (iii) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. Unsoundness of mind was not a ‘new’ ground – see the section below concerning ‘Absence of consent: some void marriages become voidable’.
7 The Formation and Annulment of Marriage (Butterworths, second edition 1969), 96.
8 Issued shortly after the bringing into force of the Nullity of Marriage Act 1971.
9 See also Re Wombwell's Settlement [1922] 2 Ch 298 and Fowke v Fowke [1938] 1 Ch 11
10 S Trowell and others, Rayden on Relationship Breakdown, Finance and Children (New York, 2016).
11 Law Commission, Report on Nullity of Marriage, 3 December 1970, 45 which can be accessed here: <https://www.lawcom.gov.uk/project/family-law-report-on-nullity-of-marriage/>, accessed 6 October 2023.
12 See the draft Bill annexed to the Report at page 52.
13 Law Commission, Working Paper No. 20: Family Law – Nullity of Marriage, 14 June 1968, which can be accessed here: <https://www.lawcom.gov.uk/project/family-law-report-on-nullity-of-marriage/>, accessed 6 October 2023. The Working Paper set out two alternatives on page 37, on which it sought views. Alternative (1) was that the decree should annul the marriage from the date of the decree; alternative (2) was that ‘the decree should annul the marriage ab initio (as now), but the legal effect of the decree should be the same as it would be if the marriage had been annulled from the date of the decree’.
14 Ibid, 13, para 25.
15 cf. ibid, 48.
16 Prior to the further grounds for voidable marriage enacted by the Gender Recognition Act 2004.
17 Law Commission, Working Paper: Family Law: Declarations in Family Matters, 17 April 1973 which can be accessed here: <https://www.lawcom.gov.uk/project/family-law-declarations-in-family-matters/>, accessed 5 October 2023.
18 Law Commission, Family Law Report: Declarations in Family Matters (Law Com No. 132, 1984), which can be accessed here <https://www.lawcom.gov.uk/document/family-law-declarations-in-family-matters/>, accessed 5 October 2023.