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In advising Cara and Ben
it will be necessary to examine the validity of their marriage and thus it is important to
analyse the law of nullity which is contained in S.11-16 of the Matrimonial
Causes Act 1973.

For a valid
marriage, the parties must have the capacity to wed and the right formalities
must be consented to. If these are not fulfilled or if the union is flawed in
some way, the marriage may be characterised as void, voidable or non-existent. This
answer will focus only on the first two categories.

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The difference
between void and voidable marriage was explained in De Reneville1,
Lord Greene MR said: “a void
marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as never having taken place and can be so
treated by both parties to it without the necessity of any decree annulling it.
A voidable marriage is one that will be regarded by every court as a valid
subsisting marriage until a decree annulling it has been pronounced by a court
of competent jurisdiction.”

Grounds
for a void marriage are laid down in Section 11 of the Matrimonial Causes Act
(MCA) 1973.

As per the enactment, under S.11 (a)2, a marriage is void if it
isn’t “a valid marriage under the provisions of the Marriage Acts 1949 to
1986”.

A marriage is void under S.11 (a) (i)3 if the “parties are within
the prohibited degrees of relationship”. The act prohibits marriage between relationships of affinity
(relationships created by marriage) and consanguinity (blood relations)4.
Though, the rules regulating blood relations are more limited than those for marriage
relations.

The consanguinity
restraint implies that marriage between individuals who are firmly related by
blood such as parent-child, siblings, or grandparent-grandchild is not adequate. Regarding
marriage between cousins there is a debate that it shouldn’t be allowed as
there is evidence that children whose parent are cousins are more likely to
suffer genetic disease because of comparative hereditary string. All things
considered, the law allows such relational unions and Baroness Deech stated that albeit “human rights,
cultural and religious practices are respected by not prohibiting such
marriages, those cousins who do marry should be made aware of the possible
genetic consequences for their children”5. Cara and Ben are cousins and therefore
they do not fall within prohibited degrees of consanguinity, thus their
marriage wouldn’t be classed as void as they wouldn’t be able to rely on this
ground.

If, Cara was under 16 she could rely on S.11 (a) (ii)6 which states that a
marriage will be void if “either party is under the age of 16″7.  Cara was born in 2001 which means that
currently she would be 16-18 years old and the legislation states that if
“either party is aged between 16-18, written parental consent is required from
each parent with parental responsibility (PR)”8. In relation to Cara’s
mother (Amy) it’s clear she consented for the marriage to take place as she was
the one insisting that Cara married Ben. It’s unclear whether Cara’s father
(John) consented for their marriage but the question to ask is whether his
consent is necessary as Amy and John got divorced and he usually “travels the
world”. Fathers do not always have PR, meanwhile mothers always have PR
therefore their consent is important. The significance then of this requirement
is that if John is deemed to have parental responsibility regarding Cara either
through a Child Arrangement Order or other means and if he didn’t consent to
the marriage, then the registrar can refuse to marry the parties, but if he
goes ahead and marries them then the marriage would still be valid.  

Ben wouldn’t be able to rely on this ground because Ben was
“training to be a solicitor”, which suggests that he must have completed his
higher education and thus it can be presumed that he would be over the age of
18.

It would also be necessary to make sure that the marriage
complied with “…certain requirements as to the formation of marriage”9

The purpose of these formalities is to guarantee that the
parties have the capacity to wed and agree to doing as such, that there are no obstructions
to the marriage, and that there is evidence by registration that a marriage has
occurred. The exact requirements rely upon whether the marriage is a civil or
religious wedding and whether it satisfies the official requirements of the lex
loci (the location where the marriage is taking place) 10. Cara and Ben went
through a civil ceremony at their local Register Office thus we need to look at
the preliminaries required for civil marriages.

For civil marriages the parties need to give notice in the
area in which they have been resident for the previous 7 days and the notice
needs to be exhibited publicly for 28 days before a certificate is used to the individual
formalising the marriage. Also, there needs to be at least two witnesses
present at the ceremony and the ceremony should be supervised by a
registrar/authorised person. There isn’t enough information in the scenario to
suggest whether these requirements were fulfilled or not, but it can be
presumed that they did follow and hence the marriage is valid. Additionally,
the fact that the “registrar misread his watch and the ceremony took place at
7pm” does not render the formalities defective because it used to be the case
that civil marriages could only take place between 8am and 6pm but now they can
take place any time, thus if the formalities were complied with then the union
between Cara and Ben would still be valid.

Furthermore,
marriage can also be void under S.11 (b), S.11 (c), S.11 (d) but none of these
are relevant to the scenario.

In conclusion, if the marriage is void it would be classed
as void abnitio (it will never be viewed as legitimate in the eyes of the law),
regardless of the parties’ aims or wishes. Its impact will be as though it
never existed from the beginning. Where a marriage is considered void, there is
no prerequisite to obtain a decree of nullity from the courts to terminate
their “marriage”, although the most common purpose for requesting a
decree of nullity where a marriage is classed as void abnitio is that the
parties’ may request that the courts reallocate their assets similarly as it
might do as such for individuals who acquire a decree of divorce or an order
for the dissolution of a civil partnership.

If the marriage is not void, it may be voidable under the
provisions in S.12 MCA 1973.

S.12 (1) (a) states that a marriage would be voidable if it
has not been “consummated owing to the incapacity of either party to consummate
it”.

Consummation is defined as “one act of intercourse after
the marriage”, therefore it is irrelevant whether the parties had sexual
intercourse prior the marriage. For consummation to take place the sexual
intercourse must be “ordinary and complete and not partial and imperfect”. This
means that there needs to be full penetration and the husband must be able to
maintain an erection. It’s not necessary for the parties to reach an orgasm. It
could be assumed that Cara and Ben didn’t have sexual intercourse prior to the
wedding as Cara was in a relationship with Joe. However, they got into an
accident after the marriage took place and before consummation could happen
which then lead to Ben being impotent. Therefore, Cara could rely on Ben’s
incapacity to consummate but Ben can also rely on his own incapacity to
consummate.

Usually, the incapacity must normally exist at
the time of the ceremony, but it has been argued that since there isn’t
specific reference in the legislation suggesting that the inability must “exist
at the time of the marriage” then there is a persuasive argument suggesting
that the inability can occur at any time before or during the marriage if the
union has not yet been consummated. Inability can be physical or psychological
(e.g. invincible repugnance). Ben’s impotence is physical and occurred after
the marriage which suggests there would be incapacity to consummate.

However, if Ben’s inability can be cured by undergoing a
surgery which is not dangerous and Ben refuses to the surgery then it would not
be deemed as incurable and then the law is more likely to view it as wilful
refusal to consummate rather than incapacity.

If that is the case, then Cara could rely on S.12(1)(b)
“wilful refusal to consummate”. Wilful refusal in S v S (otherwise C) (1956),
was held to mean “a settled and definite decision, without sufficient reason,
not to have sexual relationship with one’s spouse”. The courts will have to
look at the history of Ben and Cara’s marriage to determine if there is settled
and definite decision, and an absence of just cause for wilful refusal to
consummate, as it’s not clear from the facts of the scenario, whether Ben’s
impotence is curable or not, therefore we can’t establish fully whether there
is wilful refusal from Ben’s behalf.

Cara could alternatively, rely on S.12 (1) (c) which
renders a marriage voidable on basis of “lack of consent due to duress,
mistake, unsoundness of mind or otherwise”. Cara unwillingly married Ben
because Amy threatened to throw her out of the house and leave her penniless if
she didn’t. Thus, Cara could rely on her lack of consent due to duress.
Originally, the test was objective which meant that for marriages that resulted
out of fear or threats, the fear must have been caused “by a threat of
immediate danger to life, limb or liberty”. However, after the case of Hirani
the test is now subjective – “whether the threats or pressure are such as to
destroy the reality of the consent and to overbear the will of the individual”.
In the case of Hirani the girl was 19 years old and the courts held that there
was lack of consent due to duress. Cara is 16 years old and therefore the fear
of being thrown out of the house and left with no money would destroy her
consent and overbear her will.

Moreover, S.12 (1) (d) enables a marriage to be voidable if
“at the time of the marriage either party was suffering from a mental disorder
such as to make them unfit for marriage”. Neither, Cara or Ben were deemed to
be suffering from a mental disorder thus this would not be relevant to the scenario.
Section 12(1) (e) renders a marriage voidable if “at the time of the ceremony
the respondent was suffering from venereal disease in a communicable form”.
Again, there is nothing in the scenario to suggest this was the case therefore
this wouldn’t apply to Ben and Cara.

Also, Cara was pregnant with Joe’s child at the time she
married Ben, and this can be a basis for Ben to petition for an annulment under
S.12(1)(f). The petition for annulment under this section must be brought
within 3 years of marriage. It’s unclear how many years has it been since Cara
and Ben got married. If Ben doesn’t know about the child being Joe’s within the
3 years of marriage, then he can’t petition for annulment based on this ground.
Also, if at the time of the ceremony Ben knew Cara was pregnant with Joe’s
child and went ahead with the marriage then the marriage will not be voidable
as result of S.13 MCA 1973 which will be considered later.

Additionally, a marriage can be voidable under S.12 (1) (g)
and S.12 (1) (h) which concern marriages of transsexual individuals. However,
they are not relevant to the scenario as neither of the parties is deemed to be
a transsexual.

Lastly, S.12(2) makes it clear that S.12 (1) (a & b) do
not apply to “marriages of a same sex couple” as a result of amendments made by
the Marriage (Same Sex Couples) Act 2013.

If the marriage between Cara and Ben is deemed to be
voidable then the court will grant a decree of nullity to annul their marriage.

However, there are certain statutory bars and time limits
to prevent a marriage to be voidable, but these would not apply to void marriages.

Section 13 (1) (a) and (b) provides that a marriage will
not be voidable “if the respondent is able to prove that the petitioner with
knowledge that he could get the marriage avoided, conducted himself in a way to
make the respondent believe that he would not seek to do so”; and “that it
would be unjust to the respondent if a decree is granted”11. Neither party would be
able to raise this bar as there is nothing in the scenario to suggest as such.

Ben may be able to prevent Cara to petition based on S.13 (2)
for lapse of time, regarding S.12 (1) (c). Likewise, Cara may be able to
prevent Ben regarding S.12 (1) (f). But as mentioned above the proceedings for
annulment must have started within 3 years of marriage unless permission from
court is obtained for late application.

Finally, Cara may rely on S.13 (3) to prevent Ben from obtaining
a decree of nullity if he relied upon S.12 (1) (f), if it was proven that Ben
was aware of her pregnancy at the time of the marriage.

1 Case
citation

2
MCA

3
MCA

4
Marriage (Prohibited Degrees of Relationship) Act 1986

5
Hayes textbook

6
MCA

7 S.2
Marriage Act 1949

8
S.3 MA 1949

9
S.11 (a) (iii) MCA 1973

10
Herbet v Herbet (1819)

11 S.13
(1) (b)

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