You can’t divorce me, we were never married!

Nullity is when a marriage is declared to have never existed in the first place. This is different from divorce because, while some couples may wish in hindsight that they never married their ex-partner, there nonetheless was a legal union between the two.

Some couples might prefer to try and obtain a nullity rather than a divorce for religious and/or cultural reasons.

In order to apply for a nullity, or annulment, either party must have lived in England or Wales for at least a year or had a permanent home in England or Wales for at least 6 months. Unlike divorce, you do not have to wait one year before initiating separation proceedings. However, if you do apply after a significant period of delay, such as a few years after the marriage, then you might be asked to explain why.

If the marriage is not legally valid from the outset, it is called ‘void’. Under s11 Matrimonial Clauses Act 1973, there are five circumstances which give rise to void marriages:

  • Where the parties are within the ‘prohibited degrees of relationship’, such as brother and sister.
  • One party is already married.
  • In the case of polygamous marriage entered into outside of the jurisdiction of England and Wales, either party was at the time of the marriage domiciled in England and Wales.
  • Either party was under 16 at the time of the marriage.
  • Certain requirements as to the formation of a marriage were not met.

On some occasions, couples may not realise there were never legally married in the first place, a famous example being Mick Jagger and Jerry Hall. Their marriage in Bali, complete with a priest slitting the throat of a chicken, was declared void as the couple failed to register their marriage.

While the celebrity example is amusing in its absurdity, there is the real risk that couples engage in religious marriage which have no legal status, and therefore leave themselves open to the prospect of it being annulled.

Marriages may also be ‘voidable’, which means that the marriage exists until it is annulled. This is governed by s12 MCA 1973, and some factors which may make the marriage voidable are:

  • Non-consummation (either due to incapacity s12(1)(a) or wilful refusal s12(1)(b)
  • Lack of consent (whether duress, mistake or unsoundness of mind) (s12(1)(c) and (d)
  • One party suffering from an STI at the time of the marriage (S12(1)(e))
  • One party being pregnant not by the other party at the time of the marriage (s12(1)(f))
  • One party has, after the marriage, applied or became their acquired gender under the Gender Recognition Act 2004 (s12(1)(g) and (h))

To obtain an annulment, a nullity petition would need to be filed at court and the fee is the same as for divorce, £550.

For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email or visit our Linkedin page.

Alina Dewshi

July 2021

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