This is a comprehensive guide to void and a voidable marriage.
In this guide, you will learn;
what is marriage
meaning of void and voidable marriage
grounds for void and voidable marriage
difference between void and voidable marriage
the legal impact of void and voidable marriage
- What is Marriage?
- Void Marriage
- Voidable marriage
- Differences between void and voidable marriages
- Effects of Void and Voidable Marriage
What is Marriage?
In common law, marriage is termed to be a voluntary agreement between a man and a woman to enter into a certain legal relationship with each other and which creates and imposes mutual obligations.
Since marriage is an agreement, like any other agreement it can be affected by form and capacity thus ending up being void or voidable depending on the customs of a certain locality.
A void marriage is a kind of marriage where parties are seemed to be married but right from the beginning, in the eyes of law they are not. In simple language, void marriage is never a marriage either in fact or law.
This is mainly caused by a breach of fundamental principles of law relating to marriage when contracting the marriage.
Ground Which Causes the Marriage to Be Void
The following are the grounds for Void Marriage
- Lack of Competent Witnesses
- Prohibited Relationships
- Absent of True Consent
- Subsisting Marriage
- Under Age
The law prohibits marriage within prohibited relationships; these are prohibited relationships of consanguinity thus marriage between blood relations, such as a parent and a child or brother and sister.
Therefore once people of consanguinity relation get married their marriage will be void (no marriage at all).
This is extended to the adopted child and adoptive parent as no person shall marry a person whom he or she has adopted or by whom he or she was adopted.
Age is an important criterion of getting to marriage so when one of the parties is under the age of marriage then the marriage will be void under the law.
For example, in Tanzania, the age of getting married is 18y for males and 15y for females.
However, the law allows a woman of 14 years to get married by the consent of the court.
The law prohibits the married man to contract another marriage. In the case of monogamous marriage, the marriage will be void if one of the parties to the marriage is having another lawful marriage with another person.
For the polygamous marriage, the law states that no man while married under polygamous or potentially polygamous marriage shall contract a marriage in any monogamous form
Further, if a woman is married in Islamic form, the marriage will be void if she contracts another marriage before the expiry of the period of ‘’Iddat’’. The period of iddat is usually 3 months after the divorce or death of a husband
Legally a marriage is a union between a man and a woman. Therefore valid marriage in the eyes of the law should be between people of different sex.
This renders marriage of same-sex void. Sex change through scientific o will not entitle a man who was biologically born so to be a woman for the purpose of marriage laws.
Absent of True Consent
Since marriage is a voluntary union, marriage is void when the consent of the parties was not freely and voluntarily given.
Lack of Competent Witnesses
Marriage must have a witness to be valid. The absence of competent witnesses renders the marriage void.
Voidable Marriage is a kind of marriage that does not involve a breach of a fundamental principle of a valid marriage, therefore, is regarded by every court as a valid marriage until the decree of annulment has been issued by the court having competent jurisdiction.
Unlike void marriage, a voidable marriage is a valid marriage at the option of either part.
This means the innocent party to a marriage may decide to proceed with avoidable marriage or apply for an annulment.
Grounds for Voidable Marriage
Avoidable marriage is caused by the following grounds
- Pregnant by Third Part
- Venereal Disease
Consummation refers to the first act of sexual intercourse after contracting marriage. When the marriage has not been consummated is becoming voidable at the option of the innocent party.
Lack of consummation may be either due to incapacity of either spouse or by the willful refusal of one spouse.
In order to succeed to nullify your marriage on this ground, you must prove to the court that your husband/wife has an incurable problem that renders him or her incapable of consummating the marriage.
Pregnant by Third Part
The marriage is voidable when at the time of contracting it a wife was pregnant by a person other than her husband. This is technically known as pregnancy per alium.
The husband can petition for the decree of nullity if at the time of the marriage the wife was pregnant by someone other than himself. But if the husband knew of the pregnancy and kept quiet he will be barred from pursuing this remedy.
Once a person has contracted a marriage with a person suffering from venereal diseases in a communicable form, for example, HIV/AIDS and other sexually transmitted diseases, his/her marriage is voidable at his option to nullify it or proceed with it.
Differences between void and voidable marriages
A void marriage is never a marriage either in fact or law. Spouses in void marriage have never acquired the status of husband and wife owing while A voidable marriage is a valid marriage until nullified by the court. Spouses in voidable marriage attained the status of husband and wife.
There is no need for a decree to annul the void marriage. But for voidable marriages, a decree must be sought so as to annul it as the voidable marriage is valid marriage until a decree of absolute pronounced.
Any person can apply for a decree of annulment of void marriage but if marriage is voidable only spouses may apply for a decree of annulment.
Effects of Void and Voidable Marriage
The impact of a void and a voidable marriage is to have your marriage nullified by the court.
Therefore In the presence of any of the grounds above, any person may petition the court to declare the marriage null and void.
This is different from divorce.
The difference between divorce and the nullity or annulment is that divorce is granted as a result of the dissolution of a valid marriage while a decree of annulment is to the effect that there is a breach of the crucial principle of marriage which prevented the formation of a valid marriage or otherwise.
It is legally advised that once you want to contract a marriage you must follow all fundamental rules in your jurisdiction relating to valid marriage otherwise your marriage will be void or voidable.