When a marriage is declared void, it is as if the marriage never existed in the first place. A marriage can also be voidable, which is a type of marriage that valid until a party asks the court to declare them void, and that request is granted. This is sometimes referred to as an annulment. Annulments are very rare, and few marriages qualify for this relief.
Often people confuse the concept with short marriages. Many believe they can obtain an annulment after having been married for only a short period– sometimes as short as even a few days or weeks. But this is not the case. A short marriage is not always a void or voidable marriage. Unless your marriage is declared void, you are required to follow the regular divorce process.
Property Division in Void Marriages
A void marriage has different implications on property division than a valid marriage. As noted above, a void marriage is as if the marriage never took place. Therefore, the Matrimonial Property Act (“MPA”), would not apply, and the presumption of the equal division of property between married couples would not occur.
The only exception to this is noted under s. 2(g)(iii), which indicates the MPA will apply to a couple who has gone through a form of marriage in good faith that is void, and are living together, or have lived together, within the preceding year. To qualify for relief under the MPA by this section, the person seeking relief needs to establish that the marriage occurred in “good faith” – that is, they married the other person with the belief that they had the capacity to marry. You cannot deceive someone into marrying you knowing you do not have the capacity to marry and then seek the protections and advantages the MPA offers.
Capacity to Marry and Legal Considerations
It is also worth noting that when we say “capacity to marry,” we generally mean a person who is the required age to marry, of sound mind, not currently married, marrying of their own free will, and not blood-related to a certain degree.
Factors Considered by the Court for Void Marriages
In determining whether a marriage is void, the Court can consider (but is not limited to) the following factors:
● Whether the parties are related to each other by blood;
● Whether one or both parties had the capacity to marry, which includes being too intoxicated to understand the vows;
● Whether one or both parties were under the age of majority (19) at the time of the marriage and did not have a parent’s permission to marry;
● Whether one or both parties consented to the marriage;
● Whether one or both parties were married to another person at the time of marriage—not divorced, or seeking to be married to more than one person.
Different factors may be considered when determining whether the marriage is voidable.
Void and voidable marriages can be complicated to navigate. We encourage anyone with questions about whether this form of relief is right for their case to contact the lawyers at Lenehan Musgrave Law to discuss this, or complete the form below to book a consultation.
