Later this year, the divorce process is set to become more straight-forward with the introduction of no-fault divorce, which will be the subject of a future blog.
Declaring a marriage null and void
However, a recent court case shines a spotlight on a less well-known area of matrimonial law. The case concerned an application to the court by a husband to declare that his marriage was void as according to him, his wife had refused to consummate the marriage. This allegation was denied by the wife.
Under English and Welsh Law, it is possible for marriages to be declared “void” or “voidable” if certain conditions are met. A marriage can be declared void if it has not been consummated.
When considering how to end a marriage, consideration has to be given to all the circumstances and whether seeking a decree of nullity is appropriate. There may be cultural or religious reasons for this.
If seeking such a decree is appropriate, you are asking the Court to state that in effect, the marriage never existed.
Financial claims
However, consideration also has to be given to the motivations of the parties as if a marriage is declared to be void, neither party will have any right to make any financial claims against the other party and therefore there be no ability to obtain a financial settlement.
Returning to our case, it would appear that that was the prime motivation behind the application as the husband who was seeking the declaration that the parties’ marriage was void, had a company worth “millions of pounds” and had he been successful, his wife would not have been able to make a financial claim and secure a settlement.
Fortunately, the Judge hearing the case never had to determine the application as the husband agreed to being divorced on the basis of his
Unreasonable Behaviour.
This therefore meant that the parties did not need to undergo further expensive and intrusive litigation and that both parties would be able to make financial claims against the other and a settlement reached. This nature of the settlement will be dependent on a list of factors including the length of the marriage.
Understandably, the Judge at the Family Division of the High Court described the dispute as a “tragedy” for the pair. He commented that nullity petitions on the grounds of non-consummation were very rare and caused “great angst and upset”. Following on from the introduction of no-fault divorce, it would seem that this another area where reform should be considered.
Here to help
At Eric Robinson, we can advise on all of the issues raised in this article. We are currently offering Free appointments, details of which can be found on our website at https://ericrobinson.co.uk/services/divorce-separation-childcare/
About the Author
Catherine Day is an Associate Solicitor in Eric Robinson’s Family Department and her areas of practice include all aspects of private family work, including financial proceedings and arrangements for children. She is based at the Lymington office where she can be contacted on 01590 647680 or by email: catherine.day@ericrobinson.co.uk
We have Solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington and Richmond-Upon-Thames.
