‘It is sometimes suggested that there would be much to be said for abolishing the concept of the voidable marriage (with the attendant full hearings and sometimes unpleasant medical examination) and allowing the parties to seek a divorce based on the breakdown of their marriage...’ (Cretney, Principles of Family Law, p 84).
In light of this comment, do you think the law of nullity should be reformed?
The law of nullity is less important today than it was in the past with divorce being more readily available and more socially acceptable. Less than 1% of marriages and civil partnerships are terminated by nullity. This in itself may add to calls for the law to be reformed or even abolished. Note that the Law Commission reviewed the law in 1970 and concluded that the law should be retained because some religious groups see a distinction between nullity and divorce, and there should be a distinction between marriages which end with or without moral blame. Also at the time a couple had to be married for three years before they could divorce, but not if the marriage was annulled. Today a couple can petition for divorce after one year of marriage, so do any of these arguments still apply?
It is important that you have a good understanding of the law of nullity contained within the Matrimonial Causes Act 1973 (and the Civil Partnership Act 2004). You should know the difference between void and voidable marriages and be able to describe and comment on the grounds. Note the differences between nullity in civil partnerships and marriages, in particular, the consummation grounds do not apply to civil partnerships. Is this discriminatory or is there a good reason for it?
Can the other grounds still be justified? Is there a place for the VD, mental disorder and pregnancy per alium grounds today? Sexually transmittable diseases can be cured by antibiotics and pregnancy per alium assisted those lured into ‘shotgun marriages’. Also there is no corresponding ground for women to petition if a man has made another woman pregnant against the wife’s knowledge. What about prohibited degrees? These have been relaxed in recent years.
Cretney suggests that voidable grounds should be covered by divorce – so potentially void grounds should be retained. However, will anything really be gained by this? In cases of forced marriage for example, is nullity more appropriate than divorce?