Nullity is the area of the law which is concerned with whether a marriage is or is not valid. The law sets out certain grounds upon which persons who have gone through a marriage with each other will be held not to have entered into a valid marriage and will be entitled to a decree of nullity.
Some grounds of nullity render a marriage void while others render it voidable. While the difference between the two is somewhat obscure the main distinction is that it is necessary to obtain a decree of nullity in respect of a voidable marriage before it can be treated as invalid.
The main grounds which render a marriage void are the following:
- The parties to the marriage are within the prohibited degrees, for example a sister purports to marry a brother.
- One of the parties lacks the capacity to marry the other because they are already married.
- One of the parties fails to give a full, free and informed consent to the marriage, for example they are being threatened with violence if they do not marry.
- There has been a failure to give the necessary three month notice of intention to marry or to obtain a court order granting an exemption from the obligation to give such notice.
- There has been a deliberate failure by one of the parties to comply with the formalities in regard to the marriage, for example getting the necessary licence.
The following are the main grounds which render a marriage voidable:
- The marriage has not been consummated due to the impotence of one of the parties.
- There is a mutual incapacity to enter into a normal functional marital relationship with each other by reason of some psychiatric or other disorder, for example one of the parties suffers from a psychiatric illness which renders him or her incapable of having a close interpersonal relationship with the other party.
Both the Circuit Court and the High Court can hear and determine applications for a decree of nullity. Most cases are now heard in the Circuit Court. If the application is commenced and determined in the Circuit Court there is a right of appeal to the High Court where a full rehearing takes place. If the application is commenced and determined in the High Court there is a right of appeal to the Supreme Court but the appeal is heard and concluded on the basis of a transcript of the evidence which has been given in the High Court.
The effect of the grant of a decree or order of nullity is that the parties are, and have been never validly married to each other and therefore none of the normal obligations of marriage can apply such as the obligation to provide maintenance or support for one’s spouse. Finally it must be remembered that a decree or order of nullity which is granted in the Civil Courts is completely different from an annulment granted by a church tribunal. Such a church annulment only has effects in the eyes of the church and does not in any way affect or alter the legal status of the parties.