Annulment

A nullity application, aka an annulment, is based on either:

1. the marriage being invalid from its outset; or
2. the marriage being defective.

An annulment ends a marriage like a divorce would.

If a marriage is considered invalid, it is a ‘void marriage’.

If a marriage is considered defective, it is a ‘voidable marriage’.

Void marriages

A marriage is void if it was never valid in the first place. It might be considered void if one of the following applies:

• The parties to the marriage are too closely related
• One of the parties was under 18 at the time of the marriage
• Various administrative formalities are not complied with (i.e. the wedding premises or person performing the marriage is not licensed, a party marries under a false or incorrect name, or marriage bans are not published properly)
• Either party was already married or in a civil partnership at the time of the marriage
• Where a marriage conducted outside of the jurisdiction (after July 1971) is polygamous and one or both parties are domiciled in England and Wales
• Where either party to the marriage is a prisoner serving a whole life sentence and did not obtain the requisite consent

Upon obtaining an order of nullity, the law treats the marriage as it having never existed, which can often be important for cultural and/or religious reasons.

Voidable marriages

A marriage is voidable if one of the following applies:

• Non-consummation of the marriage
• Lack of valid consent to the marriage/duress
• The presence of a mental disorder at the time of the marriage
• At the time of the marriage the respondent to the application has a venereal disease in a communicable form or is pregnant with another person’s child
• A party has been granted an interim gender recognition certificate following the marriage, or the respondent to the application has an acquired gender at the time of the marriage

In the above circumstances, the marriage was legally valid when it took place and remains valid until a court annuls it. The marriage exists up to the date of the nullity order. Only then is it set aside.

The court will not make a nullity order on the ground that a marriage is voidable if the respondent to the application can satisfy the court:

1. That the applicant, knowing they could apply to end the marriage, continued the relationship in a way that led the respondent to reasonably believe that they would not do so; and
2. That it would be unjust to grant the order

The application for nullity

The application must be brought within three years of the marriage if the application is based on:-

• Lack of consent, duress, or the presence of a mental disorder
• Mental disorder that would mean a party is not fit for marriage
• At the time of the marriage, the respondent to the application has a venereal disease in a communicable form or is pregnant with another person’s child
• The respondent to the application has an acquired gender at the time of the marriage

If the application is not brought within three years, the court has discretion to allow it to proceed if satisfied that the applicant has at some time during that period suffered from a mental disorder or that, considering all the circumstances, granting permission would be just.

Procedure

The application process for a nullity of marriage order is similar to that of a divorce application. The applicant completes a formal nullity application using Form D8N, setting out the basis on which they believe the marriage to be void or voidable.

The respondent must respond to the application using an acknowledgement of service form within 14 days, using Form D10, indicating if they agree with or dispute the application.

If the respondent disputes the application, they must file an answer within 21 days from the date the acknowledgement of service form is filed. If the annulment application is disputed, the court will schedule a directions hearing to consider the case and will give directions for the filing of evidence, with a view to making a determination of the disputed issue in due course.

How we can help

Issues surrounding the validity of a marriage can be both emotionally and legally complex. Whether you are seeking an annulment, or you simply wish to understand your options, our specialist family solicitors are here to help. We offer sensitive, pragmatic advice and will guide you through the process with clarity and care. For a confidential discussion about your circumstances, please get in touch with our Family Law team by filling out the form below.