To prove to the court that your marriage is void you must show one of the following grounds. Section I I of the Matrimonial Causes Act 197320 expressly provides that a marriage celebrated after 31st July 1971 (when the Nullity of Marriage Act 1971 came into force) shall be void only on the grounds there set out.
These are all grounds on which a marriage celebrated before that date would be void. In addition, it is probable that lack Of consent on the part Of one Of the parties formerly made a marriage void, in which case a marriage celebrated before 1st August 1971, affected by lack Of consent, will remain void.l The present grounds can be divided into two: those relating to capacity and those relating to formal requirements.
Lack of capacity.
Obviously lack of capacity to marry will ipso facto make the marriage void. This must be determined in accordance with the principles already discussed.: If the relevant law is English, the marriage will be void on the following grounds:
(a) That the parties are related within the prohibited degrees of consanguinity or, if the conditions set out in the Marriage Act 1949 are not observed. within the prohibited degrees of affinity.
(b) That either Of them is under the age of 16.
(c) That either of them is already married.
(d) That they are not respectively male and female. This provision is designed to cover the case Of a party who has previously undergone an operation to achieve an alleged change of sex or about whose sex there is genuine doubt’ The wording of the Act is sufficiently wide to enable a petition for nullity to be brought where each party knows that both are of the same sex but leads all concerned with the solemnization of the marriage to believe that one of them is of the opposite sex. The point is probably academic, but it is at least questionable whether the court should have power in nullity.proceedings to order financial relief for the benefit of a party to an overtly homosexual relationship.
(e) That either party to a polygamous marriage celebrated abroad was at the time of the ceremony domiciled in England. This is subject to the over- riding principle that a foreign rule of law must be applied instead of the English rule when the conflict Of laws so requires. 6 Consequently, if the proper law to apply is that of the proposed matrimonial home, the marriage may still be valid notwithstanding that one of the parties is domiciled in this country.
Defects which will never invalidate a marriage.
The Marriage Act 1949 specifically enacts that a marriage shall not be rendered void on any Of the following grounds:
(a) That any of the statutory residence requirements was not fulfilled (whether for the purpose of the publication of banns or of obtaining a common licence or superintendent registrar’s certificate).
(b) That the necessary consents had not been given in the case of the marriage of a minor by common licence or a superintendent registrar’s certificate.
(c) That the registered building in which the parties were married had not been certified as a place of religious worship or was not the usual place of worship of either of them; or (d) That an incorrect declaration had been made in order to obtain per- mission to marry in iv-registered building in a registration district in which neither party resided on the ground that there was not there a building in which marriages were solemnized according to the rites of the religious belief which one of them professed.
Although these are the only formal defects which the Act says shall not invalidate a marriage, it is a general rule that, if the irregularity is not one of those which the Act expressly states may invalidate it. the defect will never make the ceremony a nullity.12 Hence, for example, even though the parties are aware that two witnesses are not present at the ceremony, the marriage will still be perfectly valid.