What is the Decree of Nullity?
“A decree of nullity may declare that a marriage is either void from the outset or voidable. Nullity is an alternative to a decree of divorce”.
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What is on this page?
- What is The Decree of Nullity?
- Void Marriages
- Voidable Marriages
- The consequence of a Decree of Nullity
- Ancillary orders
- Children of Voidable Marriage
- Children of Void Marriage
- What would you do next?
A marriage is considered void will be void in the following situations
(a) The married parties are too closely related to each other; or
(b) either the bride or groom was under 16 years of age at the time of the ceremony; or
(c) either party, i.e. bride or groom was already lawfully married at the time of marriage as it
will be deemed a second marriage for at least one party to the marriage.
If a marriage is void, then it is not recognised by a law hence no decree is required to end the marriage. However, in practice, if financial order is also required or deemed essential by any party of the void marriage then they should apply for Decree of Nullity.
A marriage can be voidable in the following situations.
- non-consummation, this could be the result of the incapacity of one party to the marriage or wilful refusal of either husband or wife. It is important to note that in a civil partnership and same-sex marriages, nonconsummation does not give rise to a voidable civil partnership or same-sex marriage; or
- lack of consent, for example, due to duress; the threat of violence, threat or violence of any other kind including financial interests etc; or
- Either Bride or Groom was suffering from a mental disorder or did not have the capacity to make an informed decision of marriage and deemed unfit for marriage; or
- an interim gender recognition certificate was issued or obtained by either party to marriage However, after the marriage.
It is important to understand that unlike void marriages, a voidable marriage exists until such time as a decree of nullity is obtained. Generally, the application for Nullity based on Voidable marriage should be made within three years of the date of the marriage.
However, this rule of 3 years does not apply to non-consummation cases, nor to cases based on an interim gender recognition certificate; and, in any event, the court also has the discretion to extend the time limit as well.
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The Consequence of a Decree of Nullity
Each party upon the decree of Nullity is entitled to apply for further Court orders in relation to children, property and finance. These orders are also available on divorce.
Children of Voidable Marriage
Children born to parents who subsequently obtain a decree of nullity are considered legitimate children. The reason or logic behind such law is that the marriage still existed up to the time of the decree.
Children of Void Marriage
In case of void marriages, the children will be deemed legitimate if, at the time of conception
- both or either of the parents reasonably believed the marriage was valid and
- the father was domiciled in England and Wales at the time of the birth, or, if the father died before the birth, he was domiciled in England and Wales immediately before his death.
A voidable marriage revokes a previous Will as it is voidable but not void. However, in case of a void marriage it has no impact on any Will and it does not revoke previous Will purely because it is not marriage at all from outset and never existed. When a decree of nullity is granted, whether in respect of a void or voidable marriage, it will have the same effect on a Will as a decree of divorce.
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