NULLITY

LECTURE SLIDES
Definitional terms
Petition: mode of commencement for nullity, Judicial
Separation, Divorce and Adoption Cases
Petitioner: person bringing the petition
Respondent: the other party against whom the
petition is brought
DEFINING NULLITY
This is one of the modes by which a marriage seizes to
exist.

Divorce is a means by which a valid marriage is ended

granting of the decree absolute by the court.

Under nullity what is questioned is the validity of the

marriage
Void and voidable marriages
Null relationships are divided into:
1. void and
2. voidable
 DeReneville v Dereneville, Lord Greene
‘A void marriage is one that will be regarded by
every court in any case in which the existence of
the marriage is in issue as never having taken
place and can be so treated by both parties to it
without the necessity of any decree annulling it, a
voidable marriage is one that will be regarded by
every court as a valid and subsisting marriage
until a decree annulling it has been pronounced
by a court of competent jurisdiction’.
Distinguishing a void and voidable marriage

Void Voidable

Does not exist from scratch valid

Decree is not mandatory, merely Decree necessary, marriage is valid until

declaratory 27(2) MCA obtains decree 33(1) MCA

Any one can seek decree Only parties can seek decree

Can obtain decree after death Cannot obtain decree after death

No bars to obtaining decree Bars to obtaining decree see s30&31 MCA

Grounds on which marriage is void s27
Prohibited degrees of consanguinity or affinity

see
Schedule to s27
Hafiz Ayuub Durga v Najmunnissa Ismail
Either party below 16
See
S27(a)(ii)
S33 MA
Failure to obtain parental consent? Muyamwa v
Muyamwa
Grounds on which marriage is void
Void under s32(2) of MA i.e. Failure to comply with
formalities

see SIWO V SIWO

Either party is married either under the act
or customary law

See
The People v Paul Nkhoma
See also s34
Grounds on which a marriage is void,
parties are of the same sex
Corbett v Corbett:
Sex relates to the biological makeup, determined at birth
Effects of a decree of nullity
Decree is merely declaratory, the marriage never
existed from the start
S27(2)
Grounds on which marriage is voidable: Non
consummation s29
1. Failure of P or R to consummate due to an incapacity
2. R’s wilful refusal to consummate the marriage

See:
S29 MCA
Wendy Patricia Patridge v Joseph Titus
Defining consummation
D-e v A-g

Consummation was defined by Lushington J as the first

act of sexual intercourse after marriage. It must be
ordinary and complete i.e. not partial or imperfect.
There must be penetration but need not be orgasm.
Defining consummation cases
Ford v Ford: first act of intercourse after marriage
Corbett v Corbett: penetration of the vagina by the
penis
Clarke v Clarke: illustrates that there must be
penetration and consummation is not synonymous to
procreation.
Baxter v Baxter: insisting on wearing a protective
sheath does not amount to wilful refusal to
consummate
Failure to consummate due to an
incapacity
The incapacity may be physical or psychological
D v D: psychological reasons sufficed, court stated there
must be an invincible repugnance to the act of
intercourse with that person
Singh v Singh: held that a lack of desire is not sufficient
there must be ‘invincible repugnance’.
Failure to consummate due to incapacity
It must be shown that:
1. The incapacity is not curable
2. The respondent refuses to undergo treatment to cure
incapacity
3. The respondent refuses to go for a medical check up
to determine whether the incapacity is curable

See s31
Wilful refusal to consummate
Horton v Horton: the respondent must have come to a
settled and definite decision without lawful excuse to not
consummate the marriage. The court must look at the
whole history of the marriage.
Potter v Potter: looking at the history did not amount to
wilful refusal as he had lost his ardour
Ford v Ford: there must have been an opportunity to
consummate the marriage.
Wendy Patricia Patridge v Joseph Titus
Kaur v Singh
Refusal to take treatment to cure incapacity is wilful
refusal
Lack of consent: Duress
Szechter v Szechter: test is whether the will of the
petitioner is overborne by genuine and reasonably
held fear caused by threat to life, limb or liberty so
that the constraints destroy the reality of consent to
ordinary wedlock
Hirani v Hirani: suggested test to be whether there is
an overbearing of the will of the petitioner caused by
threat so that the true reality of consent is destroyed.
Cases
Buckland v Buckland
Scott v Sebright
Lack of Consent: Mistake
Only
1. Mistake as to identity i.e. Not attributes: C v C
2. Mistake as to the nature of the ceremony: Valier v
Valier and Mehta v Mehta
Unsoundness of mind
The test is whether the party did not have the requisite
capacity to understand the contract, nature and
consequences of marriage see
IN THE ESTATE OF PARK (DECEASED)
Or otherwise
Caters for other mistakes such as intoxication to the
point that one does not have the requisite capacity to
contract
SUILLIVAN V SUILLIVAN
Suffering from a disease under the Mental
disorders act cap 305
Suffering from a venereal disease of
communicable form
It must be shown that the respondent did not know of
the disease
Piredda v Munkanta
P is pregnant unknown to R
Chisenga v Chisenga
BARS TO NULLITY
1. Where the petitioner knows that the marriage may
be avoided but nonetheless proceeds and leads the
respondent to believe that they will not file a petition
for nullity, the court will not grant the decree if it
would be unjust for the respondent to grant the
decree. S30(1)
2. Where one relies on s29(c-f) they must bring the
petition within three years of marriage s30(2)
3. Where one relies on s29(e or f) it must be shown that
they were ignorant of the fact claimed.
Effect of decree
Marriage valid until decree absolute obtained at which
point the marriage seizes to exist