Nullity proceedings: when ending a marriage is not about divorce

Nullity proceedings: when ending a marriage is not about divorce

When most people think about bringing a marriage to an end, they assume divorce is the only option. In some cases, nullity proceedings may be more appropriate. Nullity is a declaration that the marriage is not valid, whereas divorce brings to an end a valid marriage.

What is nullity?

In nullity proceedings a distinction is made between void and voidable marriages. A void marriage is one that was never legally valid from the outset. A voidable marriage is one that was legally valid at the time, but the circumstances of the marriage have invalidated it. It will remain a valid marriage, however, until the nullity of marriage order is made.

Grounds for annulment

A marriage may be declared void if:

• the parties are too closely related,
• either party is below the legal age to marry, currently 18,
• one party is serving a life sentence in prison and is the subject of a whole life order and permission of the Secretary of State to marry has not been granted pursuant to the Marriage Act 1949,
• one or bothparties are already married or in a civil partnership,
• it is a polygamous marriage entered into abroad by someone domiciled in England or Wales
• it is a marriage which results from a purported conversion of a void civil partnership.

A marriage may be declared voidable if:

• the marriage has not been consummated due to the incapacity of either party (this applies only to opposite-sex couples),
• the marriage has not been consummated due to the wilful refusal of the respondent (this applies only to opposite-sex couples),,
• one party did not give valid consent, for example due to duress, mistake or unsoundness of mind,
• either party, although capable of giving consent, was suffering from a mental disorder so as to make them unsuitable for marriage,
• at the time of the marriage one party had a sexually transmitted infection,
• the respondent was pregnant by someone else at the time of the marriage,
• an interim gender recognition certificate has been issued to either party after the wedding,
• the respondent is a person whose gender at the time of the marriage had become their acquired gender, unknown to the other party,
• the marriage results from the conversion of a civil partnership and any of the above factors, other than non-consummation, apply at the date the marriage is treated as subsisting.

When can you apply for nullity?

Unlike divorce, which can only be applied for after one year of marriage, nullity applications can be made at any time after the wedding.

The court will not make a nullity of marriage order on the ground that the marriage is voidable if the applicant, with full knowledge of the relevant circumstances led the respondent to believe that they would not seek to annul the marriage, and it would be unfair to the respondent to make the order.

If you are applying for annulment based on a voidable marriage, other than based on non-consummation or an interim gender recognition certificate, the application must usually be made within three years of the date of the wedding. In exceptional cases, the court may allow an application after that period. In the case of a party with an interim gender recognition certificate the application must be made within six months of the certificate.

Why choose nullity instead of divorce?

There are several reasons why nullity may be the better route:

• cultural or religious beliefs: for some people, divorce may not be acceptable. Annulment can offer an alternative that is consistent with personal values.
• no waiting period: divorce requires a year to pass after the wedding before applying. Nullity can be sought immediately.
• clarifying legal status: where a marriage is not legally valid, nullity provides certainty and allows each party to move forward clearly.
• practical advantages: In some cases, annulment may have different implications for financial planning, immigration, or religious remarriage.

What happens if an annulment is granted?

When the court makes a nullity of marriage order it is conditional. This cannot be made final until after a period of six weeks has elapsed. However, in urgent cases that period can be abridged or shortened.

A nullity of marriage order in respect of a voidable marriage has the effect of annulling the marriage from the date of the order and the marriage is treated as having existed up to that point. However, the court can still make decisions about finances, including the division of assets or maintenance, just as it would in a divorce.

Case study

Jacqueline Fitzgerald was instructed to act in nullity proceedings by trustees of a family trust, one of the beneficiaries of which was a lady aged 93 years old. She was wealthy in her own right, in addition to her entitlement under the trust. By this stage in her life, she had developed Alzheimer’s and her trustees managed her day to day financial affairs. Her family lived in different corners of the world and while they visited when they could, they were often away.

She was befriended by one of the porters in the apartment block in which she lived. He groomed her, which enabled him to take her to another part of the UK to go through a ceremony of marriage with her at a Register Office. That marriage if valid has the effect of revoking her will, such that on her death her estate would pass under the Rules of Intestacy. This would have meant the porter would have inherited her chattels, which in themselves were extremely valuable, as well as part of the remainder of her estate.

An order for nullity of marriage was obtained on the ground that she did not and could not consent to the marriage. After the conditional order was made, permission was granted to abridge the period of time before the order was made final.

Judicial separation

If someone prefers not to have a divorce but they cannot come within nullity proceedings, a further alternative is judicial separation proceedings. These are similar to divorce but one does not need to state that the marriage has irretrievably broken down. However, at the conclusion of the proceedings the parties are not free to re-marry.

Annulment within the church

The nullity proceedings described above should not be confused with seeking an annulment within the church. A Catholic annulment is an exercise of cannon law and will be based on other factors than are described in this article. If this is what is sought a party should seek legal advice and advice from their diocesan office as to the legal route that should be taken first.

A word on religious-only ceremonies

Cases involving religious-only marriages without legal registration are becoming more common. For example, a couple may have a traditional ceremony but never complete a civil marriage. In legal terms, this may not count as a marriage at all. In some cases, the court will treat it as a non-marriage, meaning that neither divorce, judicial separation nor annulment is available, and financial remedies may be limited.

If you are unsure whether your marriage is legally recognised, it is important to seek advice.

How Laurus can help

At Laurus, we work with clients facing difficult or sensitive circumstances at the start or end of a marriage. Jacqueline Fitzgerald, Partner in our Family Law team, has particular experience in advising on nullity where short marriages, lack of consent, or religious-only ceremonies raise questions about legal validity.

We will listen carefully to your situation and help you understand your options clearly. If annulment is available and appropriate, we will guide you through the process with discretion and care.

If you think your marriage may not be legally valid, or you want to understand whether nullity is right for you, contact the Family Law team at Laurus. We are here to help you find the path that works for your future.

You can reach Jacqueline on 020 3146 6300 or email jacqueline.fitzgerald@lauruslaw.co.uk