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Different types of null and void

It is not often that the goings-on in the Vatican form the subject of one of our blogs, but we do like to report on a wide range of things of relevance to family law. So when we saw that Pope Francis has taken steps to reform the way the Catholic Church deals with annulments of marriage, we thought it worth a quick look.

These changes, which come into effect in December, will substantially improve matters for Catholics who wish to annul their marriage in the eyes of the Church. Marriage is a sacrament to Catholics, and is considered indissoluble in the eyes of God. Divorce is not recognised, and remarriage after divorce denies a person receipt of the Eucharist (although the current, rather enlightened, Pope may well be looking into this issue too). Therefore to be able to marry again in the eyes of the Church, the faithful must obtain an annulment of the first marriage.   To do this they must show there was never a valid marriage in the first place, because something the Church considers fundamental was missing: perhaps an openness to having children, or a lack of intention to be faithful on one side.

Pope Francis has issued documents to amend the Canon Law which governs the workings of the Latin Church and the Eastern Catholic Churches. He is streamlining the procedures by which people can ask the Church to declare their marriage annulled. The Pope has said that the Church should show compassion towards those who may feel alienated from it because of their marital situation and the intimidating complexity of the annulment process. Almost (but not exactly) echoing the sentiment of the current President of the Family Division (our ‘top judge’), the Pope has called for “a just simplicity” so that those who think that their marriage is null can have the situation examined as speedily as is practicable.

The streamlining procedures mean that a request to the Church that a marriage be annulled only needs examination by one Tribunal rather than the current two. The number of people sitting in the Tribunal has been reduced, and the process has been made free of charge.   The Pope intends that this will speed up the process and increase its availability.

An annulment in the eyes of the Catholic Church is completely different from divorce. Divorce is a matter of the civil law of England & Wales, and an annulment is a matter of church law. If a marriage is annulled by the Catholic Church, the spouses are still married in the eyes of the law of this country unless they obtain a divorce. While a divorce ends a marriage, a Church annulment states that there was never a valid marriage in the first place. If there was no marriage in the first place – ie if the Church grants an annulment – it is open to either person to marry (again?) in the eyes of the Church. If the English courts grant a divorce, it is open to either person to marry again in the eyes of the civil law.

Still with us? Just to confuse you further, we have the concept of annulment in our English civil law too. In English law it is possible to have a marriage annulled either if it was never legally valid (known as a void marriage) or if it has become legally invalid (known as a voidable marriage).

A void marriage is one that was not valid when entered into and so is treated as never having taken place. For example, a marriage can not be valid in this country if either spouse was under the age of 16 at the time, if one spouse was already married or in a Civil Partnership with someone else, or if the couple are too closely related.

Also, an apparently valid marriage can become invalid, or voidable, in certain circumstances, so that if one spouse asks the court to declare it annulled it has the power to do so if certain criteria are met. T he grounds on which a marriage might be voidable are:

  • that the marriage has not been consummated due to one party’s incapacity, or wilful refusal to do so;
  • that consent to the wedding taking place was invalid due to duress, mistake or unsoundness of mind;
  • that at the time of the marriage either party although able to give a valid consent was suffering from a mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfit for marriage;
  • that at the time of the marriage one spouse was suffering from a communicable sexually transmitted disease;
  • that at the time of the marriage the wife was pregnant by someone other than the husband;
  • where one spouse goes through gender reassignment and recognition after the marriage, although these provisions are a little more complex.

Just to confuse matters further recent cases have seen judges talking about non-marriages as well, which are ceremonies which take place but do not meet the criteria for a marriage to have occurred, so are not recognised, and so cannot either be dissolved by divorce or annulled (e.g. if a couple go up with a priest in a hot air balloon and have a ‘marriage ceremony’ it’s not an actual marriage ceremony as it doesn’t take place in a licensed venue – it’s not a marriage at all). As an important aside: a court can make financial orders following annulments just as it can after divorce and dissolution, but not in the case of a non-marriage.   And not in the case of a Catholic annulment either, unless it is accompanied by a civil divorce.

Is you would like to talk to us about annulment or any other matters of family law, do get in touch on 01223 443333.