The Law of Nullity is Redundant and Should be Repeated Forthwith - Essay Example

Family Law Discuss the proposition that the law of Nullity is Redundant and should be Repealed Forthwith Over the years, marriage has been considered as one of the most important aspects in the society especially in relation to the crucial role it plays in giving rise to the new generation. Just like other aspects in society, marriage is subject to law(s) that governs it.1 One of the laws that relate to marriage is law of nullity. Law of nullity is under the Family Law. Law of nullity in Family Law respond to circumstances in which marriage can be considered null, invalid, or valid.

2 Law of nullity implies that marriage is unlawful and is either voidable or void due to various conditions that exist during the period of marriage. For instance, incestuous or a bigamous marriage is void. Under English Law, marriage can be classified as either voidable or void; Lord Greene made the distinction between void and voidable marriages in De Reneville v De Reneville (1948).3 Therefore, nullity decree is a declaration that marriage never came into being, that is, it had been void right from the beginning.

In addition, it may be equivalent to the divorce decree, which requires that marriage be dissolved. However, it is important to note that nullity of marriage is different from the divorce in the sense that a decree of nullity declares that the marriage never came into being or parties were never married, whereas divorce applies to where marriage had existed.4 This essay will discuss the proposition that the law of nullity is redundant and should be repealed forthwith. The discussion will determine the validity of the proposition, that is, whether the law is redundant or not, and if there is need to repeal it or not.

There have been disagreements both nationally and internationally, as whether law of nullity should be applied or not. The disagreement stems from what criteria or aspects should be used to determine the validity of marriage. The following aspects have been considered to define essential validity; domicile, habitual residence, ceremonies such as weddings, and nationality among others.5 For a marriage to be recognised legally, certain legal requirements and formalities must be adhered to or be observed.

In the UK, the following should be observed: one, the marriage should be between a man and a woman who are over 16 years of age at the time of the marriage ceremony; it was ruled in Pugh v Pugh (1951) that marriage under age of 16 years is illegal. In an event both or either of the parties to the marriage is below age of 18 years, the written consent of a legal guardian or parentis required.6 Two, a marriage ceremony in the UK should be in an approved place such as a building approved for civil marriage, religious building like an Anglican church, register office, and such other places registered for marriage solemnisation.

7 Three, marriage should have documentary evidence of age, name, nationality, and address in addition to evidence of ending of previous civil partnership or marriage, if there was any.8 Four, marriage is voluntary, both parties must show their intention to marry, and this intention must be displayed for 15 days on the notice board of a register office prior to the ceremony.9 In Gereis vYacoub (1997), it was ruled that failure to observe these formalities result to annulling of marriage. Having considered the legal requirements and formalities of marriage, it is important to consider annulment as one of the ways in which marriage can end.

As has been noted, annulment is a legal declaration that marriage is invalid to the effect that it is regarded as not to have taken place at all. It also implies that marriage is voidable, that is, it still subsists until a court pronounces a decree annulling it. Therefore, what makes a marriage void? A marriage is invalid if it is among the list of prohibited degrees, which includes relationship of affinity and consanguinity.10 In addition, a marriage is void if a party or parties to the marriage are under 16 years of age and thus lacks the legal capacity to marry.

11 Moreover, a marriage is void if the parties proceeded to marriage with the knowledge that they used defective formalities.12 On the other hand, what makes marriage voidable under law of nullity? First, Section 12 of Matrimonial Causes Act states that marriage is voidable if it has not been consummated because of incapacity or inability of either party to consummate it, as it was ruled in Singh v Singh (1971).13 Consummation entails sexual intercourse, which is complete and ordinary. Marriage is also voidable in an event one of the parties refuses to consummate it voluntarily.

14 Besides, where one of the parties has not consented to the marriage, it can be avoided. Consent will not exist where there has been mistake, duress or unsoundness of mind, as it was ruled in Hirani v Hirani (1982).15 Finally, in the light of the above, it is noteworthy that law of nullity is fully entrenched in the Family Law where it plays a critical role in responding to issues related to marriage. The law of nullity addresses critical issues in marriage that are not only legal in perspective but also reflects on the values and morals of the society.

For instance, it helps in prohibiting incest, which is immoral. The conditions it provides for declaring marriage as either void or voidable are genuine and appropriate; I consider it not in excess. Therefore, the proposition that the law of nullity is redundant and should be repealed forthwith is untenable and lacks in evidence and proof. The discussion has highlighted the major provisions of the law of nullity, and it is evidently clear that it is not redundant hence no need of repealing it.

References M Baker ‘Nullity Proceedings in the Twenty- First Century: A Case for Reform’ (2002) NLJ 942 K Brunner ‘Nullity in Unconsummated Marriages’ (2001) Family Law 837 C Helen, Family Law (Key Facts), 2nd ed. (Hodder Education 2007) [p. 16] H Sonia, Family Law: Text, Cases, and Materials, 2nd ed. (OUP Oxford 2011) [p. 51] J Eekelaar, ‘Evaluating Legal Regulation of Family Behaviour’ (2010) International Journal of the Jurisprudence of the Family 17- 34 J Herring, Family Law, 5th ed.

(Longman 2011) [p. 11] J W Herring, Family Law: Law Express, 3rd ed. (Pearson 2010) [p. 29] J W Herring, Family Law (Pearson 2009) [p. 74] J Black, J Bridge, T Bond, and L Gribbin, A Practical Approach to Family Law, 8th ed. (OUP Oxford 2007) [p. 39] K Standley, Family Law, 7th ed. (Palgrave Macmillan 2010) [p. 17] O Robert and V Nancy, Examples & Explanations: Family Law, 3rd ed. (Aspen Publishers 2010) [p. 27- 9) P Akpoghiran, Proofs in Marriage Nullity Process. (CreateSpace 2011) [p. 37- 43) R Probert, Family Law, 7th ed.

(Sweet & Maxwell 2009) [p. 6] S Jane, Family Law Handbook 2011 (Legal Practice Course Guide), 2nd ed. (OUP Oxford 2011) [p. 15- 18] The National Archives. Retrieved 29, 2011 from www.legislation.gov.uk/ukpga/1973/18