The distinction between void and voidable marriages was described by Lord Greene MR in the following words: ‘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.’
A marriage will be void if either party lacks capacity to contract it or if the ceremony is formally defective. Until the Nullity of Marriage Act it was doubtful whether lack of consent made a marriage void or voidable; in the ease of marriages contracted after. 31st July 1971, the Act specifically provides that this will make them voidable. With the doubtful exception of lack of consent, the only ground on which a marriage could be voidable after 192912 was that one of the parties was impotent. The Matrimonial Causes Act of 1937 added four new grounds: the respondent’s wilful refusal to consummate the marriage, either party’s mental disorder, the respondent’s venereal disease, and the respondent wife’s pregnancy per alium. Impotence, the four statutory grounds (with some modifications) and lack of consent are the grounds on which a marriage will be voidable today.
The vital distinction between a void and a voidable marriage is still that the former, being void ab initio, needs no decree to annul it. whilst the latter is in all respects a valid marriage until a decree absolute of nullity is pronounced. Hence if either party dies before a decree is granted. a voidable marriage must be treated as valid for all purposes and for all On the other hand, for example, either party to a void marriage may lawfully contract a valid marriage with someone else without having the first marriage formally annulled.
Even though, in the case Of a void marriage, a decree of nullity can only be declaratory and cannot effect any change in the parties’ status, there may be good reason for obtaining such a decree. In the first place, there may be some doubt whether on the facts or the law applicable the marriage is void: whether, for example, one party was already married or there was a due publication of banns. Secondly. a decree Of nullity is a judgment in rem. so that no one may subsequently allege that the marriage is in fact valid. But the most important reason for bringing proceedings is that the Court has power on granting a decree to make certain ancillary Orders, and a party may therefore present a petition in order, for example, to obtain a property adjustment order or financial provision for herself and any children of the family. As the parties are not married, this is in fact the only way in which the ‘wife’ may obtain any form of maintenance for itself.