Key definition

Consummation. Vaginal intercourse. The fact contraception is used does not prevent there being consummation, but there must be penile penetration.

Problem area

Inability to consummate after marriage A popular scenario in a problem question is where one of the parties to the marriage becomes physically unable to consummate the marriage after the marriage ceremony, but before there has been consummation. One of them suffers a serious car accident leaving the wedding reception, for example. Section 12 of the Matrimonial Causes Act does not make it clear when the inability must arise. The traditional church doctrine require the voidable ground to be present at the time of the marriage. However, it may be that the policy behind allowing this voidable ground applies equally to a case where the inability arises before or after the marriage.

Reading:

Sheffield City Council v. E[2005] Fam 326 Concerning: capacity to marry Facts A local authority became concerned about a young woman who was 21 years old, but who had a variety of problems and functioned as a 13-year-old. She had befriended an older man who had a history of committing sexually violent crimes. They planned to marry. The local authority sought guidance on the degree of capacity required of her to be able to marry. Legal principle Munby J stressed that it was presumed that a person had the capacity to marry. To have the capacity to marry an individual had to understand the nature of marriage and the duties and responsibilities that flowed from it. These included that the man and woman agreed to live together; to love one another to the exclusion of all others in a relationship of mutual and reciprocal obligation; to share a common home and domestic life, and to enjoy each other's society, comfort and assistance. Munby J suggested that this was not meant to set the hurdle of capacity at a high level and to understand these things did not require a high degree of intelligence. He also emphasised that the question of capacity to marry was different from the question of whether the person was wise to marry this person. Nor did capacity to marry require that the individual was aware of the characteristics of their proposed spouse.

Void marriage

- The marriage is automatically void, there is no need to obtain a court order to say so

- Any person can apply to have a marriage declared void

- A child born to a couple in a void marriage is 'illegitimate' unless the couple believed their marriage to be valid. However, illegitimacy has very little significance in law today

Voidable marriage

-The marriage can only be set aside if there is a court order. Without a court order annulling the marriage, it is a valid one

- Only the parties to the marriage can

apply to have a voidable marriage annulled

- A child born to a couple in a voidable marriage is not 'illegitimate'

Bars to Nullity:

1. Approbation: the petitioner knew that she could have avoided the marriage, but behaved in such a way that the respondent believed that she would not seek to annul the marriage. It must also be shown that it would be unjust to the respondent to grant the decree of annulment.

2. Three-year bar. If the applicant is relying on grounds (c), (d), (e), (f) or (h), then proceedings for annulment must be instituted within three years of the marriage.

3. Six-month bar. If (g) is relied upon (issue of an Interim Gender Recognition Certificate), then unless proceedings were instituted within six months of issuingthe certificate, the court cannot annul the marriage.

4. Ignorance. In the case of (e), (f) and (h), the court cannot issue a decree unless satisfied that the petitioner was ignorant of the facts at the time of the marriage.