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The distinctions between void and voidable marriages serve no purpose in modern family law and should be abolished.

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Introduction

Family Law 22114 2002-13295 Written Work 2003-2004 Semester1 The distinctions between void and voidable marriages serve no purpose in modern family law and should be abolished. Discuss To discuss the distinctions between void and voidable marriages, we must first establish that they are not the sole types of marriage. Firstly, there is a valid marriage; one where the ceremony follows the correct formalities and there are no defects at all. The fourth, and often ignored category is that of non-marriage; a ceremony that is so far removed from a valid marriage, it is not a marriage at all, e.g. in the case of Ghandi v Patel1. In answering the question, it is inevitable that we discuss the grounds for void and voidable marriages and the differences between them. The law tells us in the Marriage Act 1949, what is a valid marriage, and in the Matrimonial Causes Act 1973, the law tells us how a marriage is void or voidable. A void marriage is a marriage that never existed (void ab initio - void from the beginning), whereas a voidable marriage is valid until it is annulled. Marriage is a status relationship. Formality is extremely important, if not essential to a valid marriage. Heterosexual sex is a central feature of marriage also. Many grounds for a voidable marriage and grounds for divorce relate to sex. ...read more.

Middle

In this case, where the husband had refused to arrange the religious ceremony, the wife refused to co-habit and therefore consummate the marriage. The ruling saw that the husband had no just cause or excuse not to arrange the ceremony, but the wife did, and so the husband was stopping the act of consummation, so the marriage was annulled. Derived from section 12 (c) the lack of consent "in consequence of duress, mistake, unsoundness of mind or otherwise" is a further ground for a voidable marriage. Examples of this ground include a threat to life, limb or liberty (in the case of duress), genuine mistake to the nature of the ceremony, e.g. Mehta v Mehta13, where wife thought she was converting to Hinduism, but instead was undergoing a marriage ceremony. Also a mistake as to the identity of a person, but not personality, would render the marriage voidable. Not all aspects of mistake make a marriage voidable, for example, in Way v Way14 the fact that the husband did not know the Russian marriage regulations was irrelevant and could not be cited as a ground to get the marriage annulled. However, if either party is not of sound mind, and does not fully understand the nature of the marriage and the duties it upholds, or "otherwise", for example, under the influence of alcohol or drugs, the marriage can be declared voidable. ...read more.

Conclusion

According to many religions, divorce is not acceptable, yet if circumstances do not allow for a couple to undergo a normal marital relationship (see grounds for voidable marriages) nullity seems a perfectly tolerable option. In conclusion, the idea of void and voidable marriages is becoming somewhat outdated. Although it serves the purpose for people not to have to undergo what could be seen as a difficult process, divorce can also have religious or social taboos, whereas nullity does not carry the same stigma. If the amount of people petitioning for a decree of nullity is substantially lower than those petitioning for divorce, why continue to confuse and contradict people, with an unclear system of law? 1 [2002] 1FLR 603 2 Marriage (Prohibited Degrees of Relationship) Act 1986 3 [1965] P 85 4 [1969] 1 QB 1 5 [191] 2 All ER 680 6 Section 11 (a)(ii) Matrimonial Causes Act 1973 7 Section 12 (c) Matrimonial Causes Act 1973 8 Marriage Act 1949 section 25 9 Section 11 (a)(iii) 10 Dredge v Dredge [1947] 1All ER 29 11 [1947] 2 All ER 871 at 874 12 [1972] 1 All ER 292 13 [1954] 2 All ER 690 14 [1949] 2 All ER 959 15 Section 12 (f) 16 Section 13 (2)(4) 17 Section 13 (3) 18 [200] 1 FLR 8 19 Section 12 (c)(d) 20 "Population Trends 113" Report: Divorces in England and Wales during 2002. Source: The Court Service. - 1 - ...read more.

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Here's what a teacher thought of this essay

4 star(s)

A good essay which sets out the basics very well, and examines closely the lack of clarity in the law.

To achieve higher marks, the student should have adopted a tighter structure, comparing the legal regimes related to void and voidable marriage, in the context of the 1970 Law Commission Report.

Further, more reference should have been made to the social taboo of divorce compared to annulment.

4 Stars.

Marked by teacher Edward Smith 07/08/2013

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