LinkedIn   Twitter   Facebook   Instagram  
[title]

Get In
Touch

Open Mon - Fri
8:30 am to 5:00 pm

enquiries@hawkinsfamilylaw.co.uk

Stony Stratford: 01908 262680
Bicester: 01869 225580

RAMBLINGS  |  CAREERS  |  FEEDBACK  |  READING TITLES  |  USEFUL INFORMATION

Divorce or Annulment?

January 11th, 2019

A marriage is not always simple and straightforward – many people may be unaware of the following different types of marriages, which need to be distinguished as they have very different ways of being brought to an end:

  1. Valid Marriage
  2. Void Marriage
  3. Voidable Marriage
  4. Marriage of No Legal Significance

Valid Marriages

The most common form is a valid marriage. When a marriage is entered into with compliance with the necessary formalities and the consent of both parties, the marriage is valid. This means that the only way for it to be brought to an end is with a divorce.

Void Marriages

A void marriage is not recognised as legally valid and, thus, in the eyes of the law, the marriage never existed. For example, a couple going through a ceremony in a hot air balloon in California, omitting the legal requirements of a marriage in that state.

The Matrimonial Causes Act (MCA) 1973 at section 11 sets out the grounds upon which a marriage is void:

a) (i) the parties are within the prohibited degrees of relationship; (i.e. parent and child, siblings, grandparents, aunts/uncles etc but cousins are not included)
(ii) either party is under the age of sixteen; (parental consent is required for those who are 16-17 except in Scotland)
(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage; (these formalities are set out in section 49 and they only make the marriage void if one party knew that the formality was not met)

b) that at the time of the marriage either party was already lawfully married;

c) that the parties are not respectively male or female; (this has now been repealed by virtue of the marriage (same sex couples) Act 2013)

d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

For civil partnerships, the same reasons as above apply to make the partnership void along with an additional circumstance which is if the parties are not both of the same sex – Civil Partnerships Act 2004 section 3 (1) (a).

Void marriages may only be ended by an annulment. This means that the parties are not divorcees; any future marriages entered into are treated as their first marriage.

Voidable Marriages

Voidable marriages are flawed but one can still be a valid marriage if both parties wish for it to be so. Alternatively, one or both parties could choose to have the marriage annulled.

The Matrimonial Causes Act 1973, Section 12 (1) sets out the grounds on which a marriage is voidable:

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it. This, as well as part

(b), only applies to couples of the opposite sex. It was based upon the idea of marriage as a spiritual union – sexual intercourse was necessary to complete the sacrament of marriage. There needs only to be one act of consummation, which is defined as nothing other than penetration by penis into vagina which is ‘not partial and imperfect’. (b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it. It is not possible to apply for an annulment based on a person’s own wilful refusal – only their partner’s. There must have been a ‘settled and definite decision… without just excuse.’ This is difficult to satisfy, and must be more than simply a lack of attraction or dislike of the other partner. It is difficult for a Court to determine whether there was inability or wilful refusal.

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise. Anyone petitioning for nullity under this ground must bring their petition within three years of the ceremony. Firstly, duress has a reasonably high bar and must be more than, for example, simply an arranged marriage. Mistake is a very rare occurrence and might only happen where, say, the petitioner was unaware of the respondent’s real identity or was completely unaware that they were entering into a marriage. Finally, unsoundness of mind must occur at the point of the marriage, and be where the person does not understand the consequences and responsibilities arising from a marriage.

(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder of such a kind or to such an extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form which refers to a sexually transmitted infection – which the other party is not aware of.

(f) that, at the time of the marriage, the respondent was pregnant by some person other than the petitioner. The petitioner must not have been aware of this before they were married. This only applies to a respondent who is a woman – if the groom made another woman pregnant, an annulment is not possible.

Marriage of no Legal Significance

A marriage of no legal significance (MONLS), alternatively, has no resemblance to a legal marriage. For example, in one case, a couple invited some friends round and said kind things to one another at their home. This was nothing like a legal marriage.

Distinguishing the types

To simplify, if a couple attempted to go through a ceremony of marriage and any departure from legal formalities is small and/or the parties were unaware of the departure then they will have a valid marriage. Alternatively, if they knowingly partook in a ceremony which departed from the formality requirements but still bore the hallmarks of a marriage, it will likely be a void marriage. Finally, if the event looked nothing at all like a marriage, it will be a non-marriage. Voidable marriages are in a different category and only apply in specific circumstances, as outlined above.

It can appear that there is very little distinguishing these different types, although it is important to be aware of which type is had so that the correct procedure to end the marriage can be followed. Those who seek an annulment of their marriage can do so at any time from the marriage’s inception, however, if a person seeks a divorce, they must wait a year. Importantly, the law offers financial assistance to those who have a valid or even a void marriage, however, not to those with a MONLS. Clearly, those who were not married in any way, shape or form has no matrimonial claim against the other for financial relief. It is for this reason that some husbands/wives may try to argue that there was no marriage so that they are not liable to the other for maintenance or any sort of division of the financial assets. This, understandably, is not any ease case to make. If you would like some advice in relation to marriage, divorce or other Family issues, please contact a specialist at Hawkins Family Law at enquiries@hawkinsfamilylaw.co.uk or on 01908 262 680.

 


 

Written by

Holly Mullen

PA

Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.

  • How Counselling Can Help with Divorce Related Stress
  • The Impact of Domestic Abuse on Decision making in Divorce
  • My cohabitee has promised me the earth. Can I rely on it?
  • Access to justice - Who needs lawyers?
  • What is legal 500?
  • Love Island – what happens next?
  • Dad Found Liable for the Cost of a Child Conceived Without His Permission
  • Pieces of Paper that make you Divorced: Decree Nisi and Decree Absolute
  • Summer Holidays
  • What Is Chambers and Partners?
  • Service Of Key Court Papers By Whatsapp
  • Is Therapy for Me?
  • What Constitutes Value?
  • F v M (Temporary Leave to Remove: Alleged Risk of Onward Abduction to Non-Hague Country)
  • Can Assets of a Parent Be Taken into Account in a CMS Calculation?
  • What is the HSSF Mark?
  • Wife’s Attempt to Appeal Arbitration Award Fails!
  • Shared Care Orders
  • Mental Health Awareness Week 2019
  • What Happens If I Make an Agreement Regarding Finances and Then Change My Mind?
  • Spousal Maintenance on Divorce – Is There A Claim?
  • Daga v Bangur [2018] EWFC 91 – Case Update
  • Common Law Marriage Is Not Changing!
  • Whose Outcome Is It?
  • In the Event of A ‘No Deal’ Brexit
  • What Constitutes Value?
  • What Is Legal 500?
  • Spring Clean your Routine
  • Mother Ordered to Return Child to Latvia
  • What Is ‘Chambers and Partners UK’?
  • Arbitration. A viable alternative?
  • Strive for stability in 2019
  • What Happens If I Make an Agreement Regarding Finances and Then Change My Mind?
  • Stacey Accredited by Resolution
  • Can Financial Claims Still Be Made Years After Divorce?
  • What Is the Difference Between A Court Order and An Undertaking?
  • Divorce or Annulment?
  • Therapy - A New Year’s resolution.
  • Cohabitation and the need for reform
  • The “Common Law Marriage myth”
  • What to think about when you are considering divorce from a financial perspective
  • Increase in IVF and Surrogacy Leads to A Decrease in Adoption Rates
  • Looking After Yourself
  • Transparency in the Family Courts
  • The Legal 500 rankings for 2018/19
  • Forced Marriage
  • What can therapy help with?
  • Chambers and Partners Ranking Released
  • Does Divorce Law Encourage Couples to Reconcile?
  • What is Resolution?
  • Asserting yourself or saying no.
  • Is Bigger Always Better?
  • McKenzie Friend
  • Prioritising Your Children’s Needs in Adverse Circumstances
  • What do I need to know if I decide to cohabit with someone?
  • High Court Judge ‘Deprecates’ Interrupting Barristers
  • Prohibited Steps Orders
  • Domestic abuse in all its forms is unacceptable
  • The Five Facts for obtaining a Divorce Part 2
  • The Five Facts for Obtaining a Divorce: Behaviour/Adultery
  • Remember and recover... Forgive and forget... - August 3rd, 2018
  • Case Law Update – Hermens v Hermans - 27th July 2018
  • Finding summer happiness July 24th 2018
  • The first women to be convicted of coercive behaviour
  • New Starter
  • Artificial Intelligence (AI) and the 'rise of the machines'.
  • Let's remove fault based divorce - July 6th, 2018
  • Honesty really is the best policy - June 29th, 2018
  • Heterosexual Couples win right to enter into Civil Partnerships - June 27th, 2018
  • Waggott v Waggott [2018] EWCA Civ 727 - June 22th, 2018
  • Privacy and confidentiality - June 15th, 2018
  • The ongoing Russian oligarch saga - June 8th, 2018
  • Being a Trainee Solicitor - June 1st, 2018
  • 83 year old millionaire jailed for non-compliance with divorce order
  • Conduct in Financial Proceedings & The Notorious "Add-Back" Argument - May 18th, 2018
  • Mental Health Week - 14th to 20th May 2018 - May 11th, 2018
  • What can we do so I can win? - May 4th, 2018
  • New measures designed to tackle domestic abuse - April 27th, 2018
  • Can I stop the other parent of my child making an application to the court?
  • Cryptocurrencies and divorce - April 13th, 2018
  • April 6th 2018 - Spring
  • How to sleep - March 29th, 2018
  • First surrogacy guidance published for England and Wales - March 23rd, 2018
  • Feminism in Family Law Part 2 – Parents and Children - March 9th, 2018
  • Feminism in Family Law Part 1 - Ancillary Relief - March 2nd, 2018
  • Chambers & Partners - February 23rd, 2018
  • Google Depression - February 16th, 2018
  • What is a Fact-Finding Hearing? - Feburary 9th, 2018
  • Moving Forward - Feburary 2nd, 2018
  • Parental Alienation - January 26th, 2018
  • Financing a property after divorce or separation – January 19th, 2018
  • Ideas to help buy a property after divorce or separation - January 12th, 2018
  • New Year 2018 - January 5th, 2018
  • The First Step - December 29th, 2017
  • Have a considered Christmas 2017 - December 22nd, 2017
  • Who is looking after you? - December 15th, 2017
  • What is the legal 500 - December 8th, 2017
  • When the clocks go back - December 1st, 2017
  • You are the Priority - November 17th, 2017
  • Hawkins Family Law ‘Boutique family law firm that punches above its weight’ as noted by Chambers and Partners UK Guide, 2018
  • Husband installs secret cameras to record abuse from wife - November 24th, 2017
  • My spouse owns the family home - what can I do to protect my interest? Can I still live there until the divorce is finalised? - November 10th, 2017
  • Division of assets following divorce - November 3rd, 2017
  • My marriage has broken down - what do I need to do? - October 27th, 2017
  • Identifying your emotions to create change - October 20th, 2017
  • Jo Hawkins is listed in elite “ Leading Lawyers” list by The Legal 500 United Kingdom, 2017’s guide to outstanding lawyers nationwide - October 12th, 2017
  • New divorce forms unveiled - October 6th, 2017
  • Judge writes personal letter to teen after High Court battle - September 29th, 2017
  • Mental Health Saboteurs - September 22nd, 2017
  • Birch V Birch - September 8th, 2017
  • Congratulations, Rebecca Stewart passes her CILEx Level 6 in Client Care!
  • Resolution emphasises the need for more specialist financial advisers - August 25th, 2017
  • ONS - Population estimates for the proportion who are married or cohabiting by reference to age and sex in E & W
  • Court of Appeal rule forging contact order cannot be enforced - August 11th, 2017
  • Understanding loss as part of divorce - August 4th, 2017
  • Summary Case Law Update: X v X (application for a financial remedies order) [2016] EWHC 1995 (Fam)
  • Stacey accredited by Resolution - July 21st, 2017
  • Australian Divorce - Court of Appeal reject wife's bid for a larger settlement - July 14th, 2017
  • Just have a day - July 7th, 2017
  • Stuck in my marriage - June 30th, 2017
  • Emergency - a without notice injunctive order - June 23rd, 2017
  • Case law update concerning a mother’s application to relocate to the USA - June 16th, 2017
  • Reconciling as parents - June 9th, 2017
  • Stacey passes Collaborative Foundation training!
  • Life changing circumstances - May 26th, 2017
  • Bank of mum and dad - May 19th, 2017
  • Giving Evidence in a Children Act Case - May 12th, 2017
  • Are you more likely to divorce if you confide in female friends? - May 5th, 2017
  • Respond - do not react! - April 28th, 2017
  • Student loans - April 24th, 2017
  • Identity or not identity - April 20th, 2017
  • I don’t agree with what my spouse has said about me on his/ her divorce petition- Should I defend it?
  • Are judges the same as the rest of us? - March 31st, 2017
  • Domestic violence and child contact - can these work together?- March 24th, 2017
  • Child Arbitration- March 17th, 2017
  • A Step in the right direction for Cohabitees- March 3rd, 2017
  • Blue Monday- March 3rd, 2017
  • Blog on Matrimonial Survey Statistics - February 24th, 2017
  • What is it like to go to family court?- February 17th, 2017
  • Funding - February 10th, 2017
  • December 2016 - December 16th, 2016
  • Twas the night before Christmas… - December 23rd, 2016
  • Online Divorce Proceedings - January 20th, 2017
  • Case Law Update Concerning Overseas Pensions - January 13th, 2017
  • Make one resolution for 2017. Be Kind to Yourself - January 6th, 2017
  • Social Media in Divorce - December 2nd, 2016
  • Planning for Christmas following divorce or separation - December 9th, 2016
  • Should graduates be used to help Litigants in Person - December 30th, 2016
  • Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    2019 Family: Beds, Bucks, Herts and Middx – South East

    Hawkins Family Law fields 'a very professional team that delivers a high-class service and has strength-in-depth from senior to junior level'. Managing director and team head Jo Hawkins provides 'clear and accurate advice and moral support through often testing times for her clients; she focuses on deriving the best long-term outcome for her client and other parties'. The practice has particular strength financial matters, including divorce and ToLATA proceedings. Other key figures include Loraine Davenport, who has strong collaborative law expertise and handles complex children cases and high-net-worth ancillary relief matters; Annabel Hayward, who focuses on complex financial provision and co-habitation matters; and Stacey St Clair.

    For more information please click here.

    2019 Family/Matrimonial – Milton Keynes and surrounds

    What the team is known for
    Boutique family law firm that punches above its weight in terms of high-value and complex matrimonial finance instructions relating to business assets, pensions and substantial property portfolios, including assisting with the handling of assets abroad. Also represents clients in the negotiation of wealth protection agreements and private law childcare arrangements. Fields a team trained in collaborative law and alternative dispute resolution.

    Strengths
    An impressed client says: "The team's personal service and individual care is a great asset,"adding that the lawyers are "always available to assist and understand the occasional need for immediate advice and guidance, providing a very reassuring service."

    For more information please click here.