MARRIAGE

 "I conceive that marriage, as understood in

Christendom, may for this purpose be defined as the
voluntary union for life of one man and one woman, to
the exclusion of all others“

Hyde v Hyde and Woodmansee 1866 {L.R.} 1 P. & D. 130 by Lord Penzance
Marriage Acts:
 Who may officiate:

 Marriage Officers – be they civil

registrars/ministers of religion/justices of
the peace/magistrates.

 Except Magistrates and Justices of the Peace

(Senior JPs)in Belize and St Kitts & Nevis all
Marriage Officers must be appointed.
Publication and Preliminaries:
 Notice of intended marriage should be given and noted in a
Marriage Notice Book accessible to the public.
 Banns or Notices must be published for both civil or
religious ceremonies except where parties intend to marry
under a licence.
 Publication if being done in a church is done orally and in
writing with the posting of a Notice. Civil Ceremonies
posting of Notice only.
 If no legally founded objection (legal impediment)
Certificate or Certificates are issued. These certificates are
presented prior to the wedding ceremony.
Who May Marry:
 Adults 18 and over may marry without consent.
 Minors 16 and under 18 may marry with parental
consent unless widowed.

 Marriages by minors under 16 are void (under 15 in

Antigua and Barbuda).

 See Buckland v Buckland [1967] 2 ALL ER 300

Solemnisation:
When
 by Marriage Officer (Religious)
 6a.m. – 8p.m. (Jamaica, Antigua, Anguilla & Montserrat)
 5 a.m. – 9p.m. (Belize)

 Civil Ceremony
 10a.m. – 3p.m. – Registrar/Deputy Registrar (Anguilla &
Mon’t.)
 10a.m. – 4p.m. – If held in Magistrate’s Office. (Belize)
 9a.m. – 6.30 –if Register General officiates (Antigua &
Barbuda)
Solemnisation Continued
 In the presence of at least 2 witnesses
 Before a Marriage Officer
 Declaring consent to marry

Registration

 Steps should be taken to register the marriage after the

ceremony
 NULLITY
 A marriage is said to be null and void if there is a
fundamental defect or irregularity in the marriage
which renders it void ab initio.

 Ab initio is a latin term which means from the

beginning.
 . Marriage treated as if it never took place.
 . Cannot be said that a true marriage exists
There are generally 2 types of
nullity proceedings:
 Void
 Voidable

 Void – valid marriage never existed

 Voidable – valid unless annulled

 Void marriage exist in all jurisdictions

 Voidable exist in all jurisdictions BUT Antigua and
Jamaica
Grounds for a Void Marriages
 Subsisting former marriage:
- Already married
- Husband/wife alive at the time of the marriage

 This aspect is covered in:

- s. 4 of the Matrimonial Causes Act of Jamaica.

s. 4 (1)(a):
One of the parties to the marriage had a husband or wife living at the time of the
marriage;

. Not a statutory ground under any of the other jurisdictions zoned to Norman
Manley Law School.
 The previous marriage must have ended by one of the
following:
- Divorce
- Death
- Nullity

 If by divorce, parties may remarry only when the

divorce has been finalized. When the decree absolute
has been received and not before.
 The end of a marriage by death is generally known and
is accepted with the production of a Death Certificate.
 However, s. 9 of the Matrimonial Causes Acts speaks to
necessary action when a party to a marriage is
presumed dead:
 Before the person who presumes his/her spouse to be
dead remarries he/she may:
- Present a petition to have it presumed that the other
person is dead.
- Have the marriage dissolved.
Void for being within prohibited
degrees
 Applicable to all jurisdictions:

 s. 3 Marriage Acts, Jamaica & Belize

 s. 24 Marriage Act, Antigua
 s. 26 & 27 Marriage Act, St. Kitts & Nevis

 These are degrees of consanguinity and affinity.

- In Jamaica & Antigua make reference to the Laws of England in
force from time to time.
- Marriage Acts of Belize and St. Kitts and Nevis detail exactly who
may not marry.
* The acts of Belize and St. Kitts & Nevis do not prohibit marriage
between parties related by adoption.
Below marriageable age
 s. 3(2) Marriage Act, Jamaica - under 16
 s. 4(1) Marriage Act, Belize - under 16
 s. 25 Marriage Act, Antigua - under 15
 s. 28(3) Marriage Act, St. Kitts & Nevis – under 16.
However, if under 16 but over 15. Attorney General or
representative may grant licence if considers it to be in
the interest of the spouses for them to do so. Necessary
consents have to be obtained.
Between parties of the same sex
 s. 4(1)(d) Matrimonial Causes Act, Jamaica
 Not mentioned in the Acts of the other jurisdictions as being
void. However, it’s a voidable ground in St. Kitts & Nevis.

Corbett v Corbett [1970] 2 All ER 33

 Transgender male to female married man
Held: sex determined at birth. Could not be said to be a
marriage between a man and a woman. Marriage
annulled.
See also Re: P & G [1990] 2 FLR 90

Position changed in the UK by the Gender Recognition Act of 2004

Lack of true consent/Marriage not
voluntarily entered
 s.4(1)(c) Matrimonial Causes Act, Jamaica

 In St. Kitts and Nevis and Anguilla lack of consent is a

voidable ground and not a void one.

 One can be said to lack consent if:

- Lacks mental capacity
- Duress is used/Fraud
- Mistaken as to the nature of the ceremony or to the
person one marries.
Lacking mental capacity
 Re: Park [1953] 2 All ER 1411 CA
elderly man in poor mental and physical health
marries and dies two weeks later. Widow sought to
establish validity of the marriage
HELD:
The test is whether a party to a marriage is capable of
understanding at the time of the marriage the nature of
the contract into which he or she is entering, and that
involves the duties and responsibilities normally
attached to marriage.
Duress
 Hussein v Hussein [1938] 2 All ER 344

- Intended wife’s life was threatened by intended

husband. Marry or die.

 Buckland v Buckland [1967] 2 All ER 300

- Husband married as believed was the only way to

escape imprisonment.
Duress cont’d.
 Szechter v Szechter [1970] 3 All ER 905
- Polish citizens married to ensure that intended
wife would be released from prison.
Held:
It was not sufficient that consent was given to escape a
disagreeable situation such as penury or social
degradation: a threat of immediate danger to life, limb
or liberty was needed.
Duress continued:
The New Approach
 Hirani v Hirani (1982) 4 FLR 232 CA
- Hindu woman threatened by parents, marry or be
thrown out
At first instance held that marriage could not be annulled
as there was no threat to life, limb or liberty. This decision
was overturned on appeal. Held by Court of Appeal:

Her parent’s threat to throw her out of the house coupled

with other pressure was enough to destroy the reality of her
consent.

Note: The test is a subjective one.

Mistake
Mistake as to identity

 C v C [1942] NZLR 356

- Woman marries who represented himself to be a well
known boxer.

Held:
She was mistaken as to his attributes but not his identity. She
intended to marry the man standing beside her , and was
mistaken only as to his name and profession.

N.B. - A 1st instance case, Militante v Ogunwom0ju [1994]

Fam Law 17 in which marriage annulled under similar
circumstances is said to be wrongly decided.
Mistake cont’d
Mistake as to nature of ceremony
 Mehta v Mehta [1945] 2 All ER 690

- English woman believing was taking part in a

ceremony to convert to hindu religion.
Held:
She had not truly given her consent to marriage.
Decree of nullity granted.

See also Valier v Valier (1925) 133 LT 830

Void for Formalities
 s. 3 Marriage Act, Jamaica
 s. 62 Marriage Act, Antigua
 s. 58 Marriage Act, Belize
 s. 67 Marriage Act, St. Kitts & Nevis
Void if:
Knowingly and wilfully:
- have the wrong person carry out the marriage
ceremony
- without the presence of two witnesses (Jamaica)
Formalities cont’d.
Void if:
- Marry in the wrong place
- Without due publication of banns
- Consents to wrong person officiating (Antigua)

Knowingly and wilfully marry:

- Without due notice given
- Without certificate for marriage
- Without licence by Minister
- Without 2 credible witnesses (Belize)
Formalities cont’d
Void if:
Knowingly and wilfully:
- Marry in wrong place
- Marry without due publication of banns or licence
from Minister or certificate from Register General.
- consents to person other than marriage officer
carrying out ceremony (St. Kitts & Nevis)
Voidable Grounds
 Voidable marriages valid until annulled.
 Applicable in:
- Belize - (s. 144 Marriage Act)
- St. Kitts & Nevis - (s. 8 Divorce Act CAP 12.09)

 Wilful refusal to consummate

 At the time of the marriage suffering from a venereal disease in a
communicable form
 At the time of the marriage pregnant by another - (also applicable in Anguilla)

Other voidable grounds:

Unsound Mind (Belize)

Lack of Consent (St. Kitts & Nevis)
Bars to Voidable Grounds
Unable to bring a successful application for nullity
unless:

On grounds of Venereal Disease & pregnant by another:

- prove that ignorant at time of marriage
- petition must be brought within a year of
marriage
* (before three years have elapsed in Anguilla)
Bars to voidable grounds cont’d.
Approbation
 If a party to a marriage consents and conducts himself/herself as
if he is accepting of the validity of the marriage notwithstanding
the existence of the voidable ground he/she will not be allowed
to deny the existence of the marriage, to do so would be
inequitable and contrary to public policy.

Scott v Scott [1959] 1 All ER 951

- Married on understanding no consummation would occur.
- Tried for 2 years to change wife’s mind without success
- Sought annulment six years later

Held: His acceptance of the situation knowing his wife’s refusal

was grounds for annulment barred his petition.
Morgan v Morgan [1959] 1 All ER 539
 Male 67 and female 54 married on “companionship only” basis
 Marriage never consummated
 Male later learnt he was impotent and sought annulment based
on his impotence

Held: Would be contrary to justice and public policy to allow

him to rely on his own impotence.
Mental reservations could not nullify a valid marriage.

Application was denied on the basis of the parties’ age and

agreement.
Procedure
 Part 76 of CPR applicable, Jamaica
 Commenced by Petition in the Supreme Court
 May contain claim for ancillary relief
 Granted by way of Decree Nisi & Decree Absolute in Forms MP9
and MP 10 respectively.
 Is heard in open court

 Chapter 91 Supreme Court Judicature Act, Belize

 Commenced by Petition in Supreme Court
 Accompanied by an affidavit
 s. 2(2) affidavit must state that no collusion or connivance
between petitioner and party to alleged marriage
 Granted by way of Decree Nisi & Decree Absolute
Procedure, cont’d
Divorce Act, Antigua
Matrimonial Causes Act
 By Petition in High Court if parties have been resident
in jurisdiction for a year before the bringing of the
proceedings.
 Granted by Decree Nisi and Absolute, (Matrimonial
Causes Act, CAP 268, Antigua
Procedure cont’d
 Divorce Act, St. Kitts & Nevis
 Matrimonial Causes Rules
 By Petition in the High Court
Consequences of an annulled
marriage:
At common law:
 Children deemed illegitimate
 No legal right to spousal maintenance, right to property or
right to inherit upon intestacy or under a will if gift given to
“spouse”.

* If voidable marriage which was not voided then the above

would not apply. (valid marriage until annulled).

 Statute has brought significant change to the common

law
Statutory changes:
Right to maintenance/ancillary relief:

 In all jurisdictions ancillary relief is available to parties

of void and voidable marriages under the matrimonial
proceedings laws. Right given equally to parties going
through divorce and annulment.
Status of Children
 Status of Children legislation – no illegitimacy

 Voidable marriages only:

St Kitts & Nevis
Montserrat

 Void & Voidable:

Anguilla (Law Reform Illegitimacy Act)
Belize

 Void only:
Antigua & Barbuda
Jamaica