Sherry-Ann McGregor, Contributor
MCGREGOR
AN APPLICATION to the court to bring a marriage to an end is often loosely referred to as a 'divorce'. But, strictly speaking, a party to a void marriage may file a petition for a 'decree of nullity' in accordance with the Matrimonial Causes Act if:
i) one of the parties has committed bigamy;
ii) the marriage was void under the Marriage Act, that is, that the parties knew they got married before someone who was not a Marriage Officer or without two witnesses being present; one of them was under 16 years of age or they were blood relations;
iii) consent to marry was obtained by duress or fraud, or one party was mistaken as to the other's identity or the nature of the marriage ceremony;
iv) one party was mentally incapable of understanding the nature and effect of the marriage ceremony;
v) at the time of the marriage, the parties were of the same sex.
While the Act does not mention any other grounds for obtaining a decree of nullity apart from those mentioned above, Section 30 of the Matrimonial Causes Rules outlines special guidelines for obtaining medical evidence in support of a petition for a decree of nullity, and therefore presumes that there are two additional grounds, namely:
i) the impotence or incapacity of the respondent;
ii) the marriage was not consummated due to the willful refusal of the respondent to do so.
In either case, the court will appoint medical inspectors to examine the parties and report on the results of the examination, and the petition will proceed in a similar manner to the usual divorce petition.
This area of the law has produced some very interesting cases, such as Corbett v Corbett (England). The petitioner (husband), sought a decree of nullity and a declaration that the marriage was void. The grounds for the application were that, at the time of the marriage, the respondent was a person of the male sex and the marriage was never consummated owing to the respondent's incapacity to do so.
The respondent was registered as a male at birth, but had undergone an operation to remove the testicles and construct an artificial vagina, then continued to live as a woman. In granting the decree of nullity, the court held that a person's "biological sexual constitution" is fixed at birth and cannot be changed by surgical or other means. For this reason, the marriage was void, as marriage was a relationship between man and woman. Moreover, the marriage could not be consummated because the use of the artificial vagina could not constitute complete intercourse.
In 2005, through the enactment of the Civil Partnerships Act, 2004, England granted legal status to same sex unions through the passage of the Civil Partnerships Act 2004. This means that same sex couples can go through a form of ceremony to register their unions and get the same benefits as heterosexual couples. However, the registration has no religious element, and it is not the same as a gay marriage. Gay marriages are still void under English law.
Sherry-Ann McGregor is a partner and mediator in the
law firm of Nunes, Scholefield, DeLeon & Co. Send feedback
and comments to lawsofeve@yahoo.com.
