Differences Between Void And Voidable Marriage: Marriage is a Social and universal institution which is recognized and respected all over the world. It is widely and commonly defined as the Legally and Socially sanctioned union usually between a Man and a Woman that is regulated by Law, Rules, Customs, Believes and attitudes which prescribes the rights and duties of the parties and also accords status to their offspring.
There are two major types of Marriage, namely: Polygamous and Monogamous Marriage.
Recommended: How to become a successful Lawyer
Table of Content
Monogamous Marriage is the voluntary union of life of one man and one woman to the exclusion of all others. In this type of Marriage, a Man is entitled to only one Wife.
Polygamous Marriage is the opposite of Monogamous Marriage. It can be defined as the Voluntary union for life of one man with several wives. Thus, in this type of Marriage, a Man is entitled to marry more than one wife.
Whether Monogamous or Polygamous, Marriage is a Contract wherein both parties agree to enter into a Legal relationship with each other and which creates and imposes mutual Legal rights and duties.
A Contract of Marriage is usually referred to as Statutory Marriage as such a Marriage must comply with the Provisions of the Statue in a State for such a Marriage to be regarded as a Valid Marriage. Where a Marriage fails to comply with the provisions of a Statute, a Proceeding for Nullity of the Marriage may be brought by either party to the Contract of Marriage.
Nullity of Marriage
Nullity of Marriage refers to a Proceeding which is instituted in Court by a Party to a marriage, establishing that the Marriage was not contracted validly or that there are some defects in Compliance with the provision of a Statute. Where such a Proceeding is successful, then the Contract of Marriage shall be nullified by the court, thus bringing the Marriage to an end. A proceeding for the Nullity of Marriage arises on only two grounds which are: (I) That The Marriage is Void an Inito or (ii) That the Marriage is Voidable at the suit of the Petitioner.
A Marriage which is Void ab inito is what we refer to as a Void Marriage, while a Marriage Voidable at the suit of the Petitioner is what we refer to as a Voidable Marriage. Let’s therefore consider these two grounds for Nullity of Marriage, and the differences which exist between them.
Recommended: Countries with the best judicial system in the world
A Void Marriage is a Marriage which on the face of law is deemed to have never come into existence, and as such is Void ab inito.
In a Void Marriage, the parties to the said Contract of Marriage are deemed never to have acquired the status of a Husband and Wife. This means that irrespective of the fact that the parties may have celebrated their wedding ceremony. On the face of Law, they have not succeeded in acquiring the Status of a Husband and Wife.
I’m sure you are wondering how this is possible? And also what could make a Marriage Void, especially when you have never heard of such term like Void Marriage before? To cure your curiosity, let me examine the grounds which will make a Marriage Void irrespective of the fact that a Wedding ceremony has been celebrated.
Recommended: Top Law firm in the World 2022
Grounds on Which a Marriage Is Void
The following are the grounds on which a Marriage is Void:
a. When either party to the Marriage, is at the time of the Marriage, Lawfully Married to another Person: Under the Law, only Monogamous Marriage is recognized. Thus, when a person already married under the Law contracts another marriage with a person other than his wife or her spouse, then such subsequent Marriage will be Void.
b. When the Parties to a Marriage are within the Prohibited degrees of Consanguinity or Affinity: Consanguinity and Affinity basically refers to relationship by blood or half blood. Thus, where parties to a Marriage are related by blood or half-blood. For example: Cousin, Niece, Nephew, Sister, Brother, Step Cousin, Step brother, et cetera, such a Marriage between these parties shall be a void Marriage.
c. Non-compliance with the requirements of Law: Instructively, when a Contracted Marriage does not comply with the procedures for Contracting a Valid Marriage and also the statutory requirements of Celebration of such Marriage as provided under the Marriage Act and other relevant Statute, then such a Marriage shall be Void ab inito.
Recommended: Case Review of Donoghue v Stevenson
d. Lack of Consent: A Marriage is a Voluntary union of a Man and a Woman. Thus, where such a Union is not voluntary or rather was Contracted against the wish or consent of one of the parties to the Contract of Marriage, such a Marriage is Void ab inito. Moreso, where the consent of a party to a Marriage was obtained by Fraud, duress, or by mistaken identity, such a Marriage shall be Void.
e. Either of the Parties is not of Marriageable Age: Where either of the party to a Contract of Marriage is not of a Marriageable Age, which in most jurisdiction is 18 or 21 years, then such a Marriage is Void.
A Voidable Marriage is a Marriage which at it’s inception is a valid subsisting Marriage, but may subsequently be annulled at the instance of one or both parties owing to some existing defects in the Marriage. Hence, a Voidable Marriage is Valid unless a Party to the Marriage brings a Suit highlighting a defect in the Marriage, and the Court may now declare the Marriage Void, otherwise such a Voidable Marriage shall be deemed to be Valid.
What Are The Instances That Could Make A Marriage Voidable
a. Where either Party to the Marriage is Incapable of Consummating the Marriage: Wherein a Party to a Marriage is Incapable of Consummating the Marriage, which means that such a Party is incapable of having sex or is impotent, then such a Marriage is Voidable at the instance of a Party to the Marriage, and it could subsequently be declared Void.
b. Where either party to the Marriage is of unsound mind: Notably, under the Law where either of the party to a Marriage is of unsound mind, meaning that such a party is insane or lacks the ability to manage himself or herself, then such a Marriage is Voidable.
c. Where either party has a Mental disorder: Where a party to the contract of Marriage is suffering from a mental disorder or defect, this constitutes a ground for such Marriage to be Voidable.
d. When either of the party to the Marriage is subject to recurrent attacks of insanity or epilepsy. This constitutes a ground to render the Marriage Voidable.
e. Either Party to the Marriage is suffering from a venereal disease in a Communicable form: Under the Law, a Marriage shall be Void if at the time of the celebration of such Marriage, either party to the Marriage was suffering from a venereal disease in a Communicable form.
f. Pregnancy of the Wife by another Person: Where for instance, a Wife is Pregnant for another man other than her husband at the time of the Marriage, such a Marriage between the Woman and her Husband is Voidable and the husband may petition for the Nullity of that Marriage.
A Voidable Marriage as elucidated in all these instances may come to an end by a decree of Nullity by a Court of Competent Jurisdiction. I trust you now understand the concept of a Void and a Voidable Marriage, and the instances wherein a Marriage can be declared Void and Voidable?
Let’s now consider the differences between a Void and a Voidable Marriage.
Recommended: Important Lessons to Learn From The Prodigal Son
Differences Between Avoid and Voidable Marriage
The following are the differences which exists between a Void and a Voidable Marriage:
1. A Void Marriage is no Marriage, as it is deemed never to have taken place, while a Voidable Marriage is a Valid Marriage until the decree of Nullity is issued by a Court of Competent Jurisdiction.
2. A Void Marriage does not create the intended legal consequences, and it does not confer on the parties the status of Husband and Wife, whereas a Voidable Marriage creates the intended Legal consequences and confers on the parties to the Contract of Marriage the status of Husband and Wife, even though these privileges may be aborted at the instance of one of the parties instituting a petition for Nullity of Marriage and a declaration of the Court of competent Jurisdiction to that effect.
Recommended: Most lucrative medical specialties
3. Flowing from the above, a Declaration of a Court of Competent Jurisdiction is necessary to establish that a Voidable Marriage no longer exists or have come to an end, but in the case of a Void Marriage, the declaration of a Court of Competent Jurisdiction is not necessary to establish that the Marriage is non-existent.
4. In a Void Marriage, a Petition for such a Marriage to be Void can be instituted by any person who has an interest to protect. However, in a Voidable Marriage, a Petition for such Marriage to be annulled may only be brought by a party to the Contract of Marriage.
Recommended: Advantages and Disadvantages of being an Introvert
5. A Void Marriage may be established to be Void by relations or executors even after the death of one or both of the parties to the Contract of Marriage, but in a Voidable Marriage, the ground that the Marriage is Voidable can only be established by the parties to the Marriage during their life time.
6. In a Void Marriage, a third party can question the validity or otherwise of the Marriage. However, in a Voidable Marriage only parties to the Marriage can question the validity of the Marriage.
7. When a Marriage is Void, it literally means that the Marriage was non-existent right from the day that the Marriage took place and the parties purportedly began to live together as Husband and Wife, but when a Marriage is Voidable, the decree of Nullity takes effect only from the date the Marriage was finally set aside and not from the date that the parties entered into the Contract of Marriage.
8. The grounds upon Which a Marriage can be declared Void differs from the grounds upon which a Marriage is Voidable.
In Conclusion, it is important that before you enter into a Contract of Marriage, you check the grounds for contracting a Valid Marriage in the country of your choice, so as to prevent your Marriage from entering the pithole of a Void or Voidable Marriage. Furthermore, you should ensure that you comply with the requisite Statutory requirements necessary for the solemnization and celebration of such Marriage, so as to avoid any damage in the long run.
Edeh Samuel Chukwuemeka ACMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.