Nullification of marriage is different from dissolution of marriage. The former is a court declaration that the marriage is invalid, while the latter is a court declaration which puts an end to a given marriage. Under nullification of marriage, the court is basically saying that the marriage was not properly constituted or that it falls short of the requirements for a valid marriage. Under dissolution, the court pronounces itself and permits the end of a valid marriage.
Therefore, before approaching court for a divorce, one needs to first ascertain that indeed, the marriage was valid in the first place. Where a” marriage” falls short of the requirements of a valid marriage, then it can only be nullified.
Depending on the jurisdiction and culture of the parties to the marriage, grounds for nullification may vary. However, there are grounds which cut across all jurisdictions, most especially because of the principle of universality of laws.
Grounds of divorce have already been discussed, and they are different from the grounds of nullification of a marriage. These grounds of nullification are relied on by the party seeking to nullify his or her marriage. To approach the court for nullification, the document used is a petition, and the parties are petitioner and respondent. The petitioner is the aggrieved party seeking nullification and the respondent is the person against whom the petitioner seeks a court declaration that their marriage is invalid.
It is also important to note that though it is advisable to love the person you marry or be in love with the person you marry, the law does not require that you love or be in love with any one before you contract a marriage with them. Also, it is of utmost importance to note that though weddings are romantic affair, they are surely state functions and that is why the married couple is always issued with a marriage certificate, which is a legal document.
Now, for the court to nullify a marriage, it must be proved that:
Incapacity of either party at the time of contracting the marriage
Incapacity is a legal term to mean the lack of the required capacity to negotiate and or enter into a legally binding contract. The lack of capacity may be because one is either a minor, of unsound mind, or even bankrupt.
By law, children should not be party to marriage. It is a repugnant practice and it is generally condemned both by law and public policy. When either party is a minor, then the marriage is invalid from the very beginning. In law, it is said that “the marriage is void ab initio”
Also, persons who are of unsound mind are incapable of contracting a valid marriage. Before entering any marriage, it must be ascertained that both parties are of sound mind. Lunatics, idiots and insane people do not have capacity to marry or be married.
Bankruptcy takes away a person’s legal capacity to contract. It follows therefore that when either party is a declared bankrupt, he or she is incapable of contracting a valid marriage.
In circumstances where a party lacks capacity, he or she may lodge a petition with the court through their guardian or next of kin/friend or even their appointed receiver (if bankrupt) and ask court to annul the marriage on ground of lack of capacity.
Either party did not consent to the marriage
It is a legal requirement that both parties must consent to the marriage. The law of marriage finds its roots in the law of contract, and that is why it is a requirement that there should be a meeting of the minds of the parties before a marriage is contracted.
In cases of incapacity it is immaterial that the minor or insane person or the declared bankrupt consented to the marriage or that their legal caretakers consented to the marriage. Marriage is a considered a personal affair and consent must be by an individual, personally.
Lack of consent renders the marriage invalid and if the aggrieved party approached the court, such a marriage will be nullified on ground of lack of consent.
Person solemnising marriage not licensed
A person solemnising the marriage is the person who conducts the marriage ceremony. It may be a religious leader from a licensed religious organisation or a person for whom a special license has been acquired to carry out the wedding.
It is therefore important to ascertain that the person going to solemnise your marriage is licensed. Today’s challenge is with mushrooming churches which also purport to solemnise weddings. Members of such churches must satisfy themselves that the person conducting the ceremony is licensed to do so.
If he or she is not licensed, then the marriage is invalid.
Place where marriage solemnised not licensed
You love a garden wedding and cannot wait to say your vows while those hibiscus flowers dance in the wind? Make sure you get a license for your marriage ceremony to be conducted at that romantic location or else, it is an invalid venture you are getting into.
Religious places, gardens, beaches, private chapels, private homes and hotels must be licensed to host marriage ceremonies. A marriage ceremony conducted at a location not so licensed culminates into an invalid marriage.
Either party was incapable of consummating the marriage
A party to a marriage must be able to consummate the marriage. We have discussed what constitutes consummation of a marriage. One may be incapable on ground of age, or disability, or disease, or mere refusal to consummate the marriage.
Where it is established that one party is incapable of consummating the marriage, then the other party can petition the court to nullify the marriage. A marriage must be consummated within 90 days from the day of the ceremony.
Marriage contracted out of time recognised by law
Where the law stipulates that marriages should be contracted between 6am and 6pm, then they must be strictly contracted within those timelines. If yours is a dream to have the stars shine down on you in witness of your vows, may be, you need a special license for that.
Bigamous or polygamous marriages which are not customary or Mohammedan marriages
Once you have contracted a civil marriage or any other marriage which is characteristically monogamous, then you must not contract any other marriage while the monogamous one subsists. Therefore, any subsequent marriages after contracting a characteristically monogamous marriage which is still in existence are invalid.
However, this is not the case for cases of succession which we shall discuss sometime.
Marriage contracted by mistake as to the identity of the other party.
Remember the story from the Good Book, about Rachel and Leah and their husband Jacob, in Genesis 29? Well, if Jacob was alive in this age, he would not have to slave for his father in law before he gets to marry his beloved whom he wrongly thought was the girl in his wedding tent on the night of his wedding to Leah. He would simply have petitioned the Family Division of the court and had his marriage to Leah nullified on ground that she is not the girl he wants to marry, not the girl for whom he paid bride price.
Should you wake up on that morning after your wedding and find that the man or woman in your matrimonial bed is of a different identity from the one you thought you have married, then you may petition the court for nullification of the marriage.
The law clearly prohibits marriage between persons of close affinity and kinship. As such, you may not marry your sister or grandmother. The comprehensive list of the prohibited marriages between kin is usually provided for under the law.
We hope that this article is educative. Should you have any queries, please contact us for advice. Remember, every case is judged by its own facts. Call us, email us, or even text us and enquire about your circumstances.
BY SAMALI BITALA
This article appears in our newsletter, The Deuteronomy Vol 11 Issue 2 of November 10th, 2017. To receive The Deuteronomy in real time, click HERE