Abolishing the Concept of Voidable Marriage
Introduction
The institution of marriage is protected not only as a societal norm but also as an institution of the law. Family law essentially captures the legal connotations that marriage implies on persons and institutions. The concept of voidable marriages sits comfortably under the purview of marriages and is guided by a body of statutes with the overriding objective usually being the provision of fairness to both parties. The law suffices for man and its ideal purpose is to provide justice and fairness to all without fear or favour. Statutes in relation to marriages inherently showcase the same spirit of general laws. At this point, perhaps one ought to mention statutes of application in voidable marriages. These statutes include the Matrimonial Causes Act, 1973; the Family Law Act, 1996; the Child Support Act, 1989 and the Civil Partnership Act, 2004. The institution of marriage is respected and protected by the law. However, the entire process of marriage must be under the rule of law and within a spirit of constitutionalism. The failure to observe the law could have far reaching consequences on the life and existence of marriage and perhaps could result into an act that voids, avoids or nullifies the marriage. It is from this premise that the paper briefly discusses the whether the concept of a voidable marriage should be abolished.
The concept of voidable marriage
A voidable marriage is a marriage that contains a flaw whose legal consequences could occasion the nullity of the marriage by a court of competent jurisdiction. In this case, the question of flaw is a legal question. The question does is not a matter of fact. The Matrimonial Causes Act, section twelve, clearly stipulates the questions of law that could successfully lead to the declaration of a marriage as voidable. The factors that would cause a marriage to be voidable as contained in the Matrimonial Causes Act are as follows: one that either party in the marriage fails voluntarily or is biologically incapable of consummating the marriage. Secondly either or both parties to the marriage did not validly and voluntarily consent to the marriage. In this strain, duress, mistake, unsound mind and other related factors are accepted as grounds to dislodge the validity of consent to the marriage by either party. Three, that either party at the time of giving their consent, was suffering from a mental disorder. This should be distinguished from state of unsound mind as in the former the state is merely temporary while in the latter, insanity is arguably of a permanent nature and dimension. Four, the marriage would be voidable if proven that at the time of marriage either party was, to the ignorance of the other party, either pregnant with the child of someone else or suffering from a communicable form of a venereal disease. Finally, a marriage would be voidable if either of the parties to the marriage receives either an interim gender recognition certificate or a permanent gender recognition certificate in accordance and consistency with the Gender Recognition Act 2004. The courts treat sham marriages as voidable marriages. However, sham marriages ought to be distinguished from voidable marriages. Despite the obvious similarities, sham marriages, as opposed to voidable marriages, are not invalid and would only come to an end through a divorce or the death of either of the parties to the marriages.
The distinguishing aspect of voidable marriages can be found in the presence of the factors mentioned above and the fact that the marriages under the auspices of voidable marriages are valid until the court nullifies them. Declaration of a marriage as a nullity founds the crux of the matter. Consequently, the marriage can only be nullified through a court process in which the petitioner engages the respondent in a court case and persuades the court to nullify the marriage.
The law places requirements to be fulfilled by the petitioner for successful nullification of the marriage. As a matter of fact, the Matrimonial Causes Act provides that the marriage shall be nullified only if the following are proven by the petitioner. One, the petitioner was not aware of the possibility to nullify the marriage but instead and had convinced the respondent the he or she would not have the marriage set aside. Two, that the petition is brought to the courts within the right time, that is, within three years of marriage. Three, the petitioner must prove that he or she was ignorant of the set of facts occasioning the petition. The courts are guided by the spirit and letter of the law and the body of case laws relevant for voidable marriages.
Distinction from valid and void marriages
It should be noted that voidable marriages are marriages with a flaw that the Act clearly specifies. The flaws could be interpreted as the provisions so specified in section 12 of the Matrimonial Causes Act. This is what sets the distinction between voidable marriages from other legal categories of marriage. One might want to compare voidable marriages from void marriages. In void marriages, the position of the law is that the marriages never existed in the first place. The law considers the supposed marriage as null and void and necessarily records that the marriage never existed. As such, the position of the law is that the legal consequences of marriages do not accrue in void marriages. The rationale usually is that being void; it has no legal backing in law. What has no backing in the law equally has no legal solutions. The outcome of a void marriage is straight forward. The relation is assumed as nonexistent and having not occurred in the eyes of the law. Perhaps we ought to enumerate factors that cause a marriage to be void. Section eleven of the Matrimonial Causes Act stipulates the elements of a void marriage. The question in this case is a legal question in the same strain as the questions in voidable marriages. The following are factors that necessary make the marriage void: one, that the marriage infringes on the provisions of the Marriage Acts.
A typical infringement could be seen in a marriage in which the parties are related within the prohibited degrees, or either of the parties to the marriage are under sixteen years of age or absence of compliance to certain formalities. Usually, the infringement must be fundamental as to materially frustrate the institution of marriage both to the spirit and the letter. Two, both parties have previously entered a legally binding marriage or a civil partnership, and the entity is still alive and existent in the eyes of the law. Three, that the parties to the marriage are not strictly speaking male and female. Some caution should be thrown to the air in light of this provision. One ought to appreciate that, with changing trends; the sexes to a marriage would as a matter of fact not necessarily be limited to being female and male. However, the law is yet to be brought into currency with the social trends and developments or otherwise. Finally, if either party is domiciled in England or Wales and purports to have entered into a polygamous marriage outside England or Wales. The crux of the matter in void marriages lies in proving the existence of any of the mentioned factors. There exists no limitation of time for void marriages. The court considers the marriages illegal prima facie and the question of time does not arise. In addition, the factors are considered as detrimental to the institution of marriage and would as such not be subjected to debate. In essence, one should note that these sets of factors are fundamental flaws. This is what informs the point of departure between void and voidable marriages. The former has fundamental flaws that automatically dispenses with the existence of marriage while the latter has flows that necessarily change the nature of the marriage and avail the option of terminating the marriage by the injured party, usually the petitioner.
On the other hand, a valid marriage refers to a marriage that has no flaws in its formation. The entire process of marriage was compiled to, and the court finds no legal flaw that would necessarily dispense with its legal existence. Valid marriages are enforceable and confer on either party to the marriage basic marriage rights and obligations. Family law embraces the concept of marriage from a wide perspective. The law has taken the trouble and outlined situations in which valid marriages can be brought to an end. The life of a valid marriage can, therefore, be brought to a legal end through a legal process usually called a divorce proceeding. The distinction between valid marriages and voidable marriages lies in the approach of the law. In voidable marriages, the law embraces the concept of abolishment of marriage as a remedy to the innocent party in the marriage. In valid marriages, the law embraces a rather equal position that favours either party in the divorce process. On the overall, in consistency with the Matrimonial Causes Act and the body of case laws, the following are factors that could lead to the termination of a valid marriage: one, when one of the parties commits adultery which as a consequence the other party finds it intolerable to continue living with him or her. Two, conduct of either party in such a way that it is not expected for the parties to continue living together. Three, either party desserts the other for a continuous period of two years and above. Four, the parties to the marriage have lived apart for more than two years before the petition is presented. However, it should be noted that there are no hard and first rules in cases related to a valid marriage dissolution. The questions in valid marriages, however, are questions of fact and not of law. The questions of law usually arise in voidable or void marriages.
Should voidable marriages be abolished?
Having considered the distinctions in the law on various legal categories of marriage and specifically the grounds for voidable marriages as provided by the relevant statute, we could examine the possibility of abolishing the concept of void marriages. The remedies provided by the law in my opinion are insufficient, and the organs of the law ought to pre-empt voidable marriages and necessarily prevent their occurrence effectively abolishing the voiding concept. Let us briefly analyse the specifics and intrigues in operation. In the event of non consummation as was held in Dredge v. Dredge, the law appears to centre marriage as an institution of sexual activity. The failure to consummate marriage should not necessarily avail the marriage to becoming voidable. The spirit of marriage today is not pegged towards sexual activity or procreation. Rather, marriage is pegged on companionship. Therefore, failure to consummate the marriage does not go into the root of the institution of marriage.
On the other hand, cases of duress should be re-examined afresh. The holdings in Buckland v Buckland and Hirani v. Hirani in consistency with Section twelve of Matrimonial Marriages Act set the precedent for a petition for a voidable marriage decree on grounds of duress. However, the practicality of the duress should be re-examined. The fact that one is threatened into marrying someone should not bring the marriage under voidable marriages category. In my opinion, the law appears to be approaching the whole issue of consent with a touch of leniency. In my opinion, consent goes to the foundation of marriage, and the absence of consent should void the marriage at first instance. On ought not to be subjected to rigorous legal processes as is typical of voidable marriages while in marriage, in question, was without their free will.
The question of mistake could be examined in a different context. While the position of the law, as was illustrated in the holding, in Wakefield v. Mackay, is that only mistake of identity is voidable and not mistake of attributes, arguably, the law ought to take the radical approach as proposed in cases of duress. Where a party fully proves that he or she entered into the marriage engagement because of mistaken identity, then the law should void the marriage in totality. This principle could be borrowed from the legal approach in contracts. For a contract to suffice, the parties must come into consensus of the mind, typically referred to as consensus ad idem. In other words, the minds of either party must meet. In the same strain, marriage as a contract ought to be guided by the meeting of the mind. Clearly, it is fallacious for anyone to assert that the minds have met in cases of mistaken identity. This is because either party are reference of another third party. The approach of the law should be in pursuance of the dispensation of marriage and treatment of the entity as a void marriage rather than subjecting the marriage to the category of voidable marriages.
Finally, cases of mental disorder need to take a similar approach as proposed in the earlier two examples. The position of the law as was in Bennet v. Bennet is that if either party entered into the marriage while suffering from a mental condition, the marriage is subjected to the category of voidable marriages. The law should be more decisive in this case. The fact that one party was suffering from a mental condition necessarily implies that the consent is in doubt. The moment consent is doubtful the law should dispense with the marriage at first instance.
Perhaps one would argue that abolishing voidable marriages creates rigidity in the law. He or she may want to make people believe that rigidity as such is detrimental and could amount to a miscarriage of justice. However, one should appreciate the essence of the institution of marriage and the role marriage plays in society. The approach in society on marriage assumes some element of permanency. It is this permanency that needs to be bolstered by ensuring due processes and compliance requirements are met. As such, it would be prudent for the law to provide for two options in marriages, that is, the valid marriage and the void marriage. The fundamentality of the flaw should not inform the basis of classification. The presence of a flaw should automatically void a marriage.
Academic opinion as to whether the concept of voidable marriages should be abolished
The abolishment of voidable marriages has been part of the discourse for a number of decades. However, in 1970, the Law Commission Report substantively considered whether the concept ought to be dispensed with. The proposed solution then was that instead of seeking for a nullity, the proper option ought to be divorce. The Commission concluded that the stigma associated with divorce would affect this class of people, as well. The solution was dropped in that pretext. The discourse on abolishing voidable marriages continues to characterise forums up to date.
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