Sunday, 19 August 2018

ANNULMENT OF MARRIAGE

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In the course of our series on marriage, we have discussed how to end a marriage through dissolution of the marriage; more commonly known as a divorce. There is another means of “ending a statutory marriage” under the law which is known as an annulment. However, only statutory marriages can be annulled.

We will consider when a marriage can be annulled and the grounds upon which a marriage can be annulled.

To annul means to declare invalid. Annulment of a marriage means that the marriage was void and not valid. When a petition is filed in court for an annulment of a marriage, the court grants a decree of nullity of the marriage.

There is a difference between an annulment of marriage and a divorce. When a marriage is annulled, the implication is that the marriage is void; it was never valid. The marriage in effect never existed. In the eyes of the law the couple was never married, because there was no legal marriage in existence. In the case of a divorce, the marriage was valid and the order dissolving the union legally brings the valid marriage to an end.

WHEN WOULD A DECREE OF NULLITY OF MARRIAGE BE GRANTED?
A decree of nullity of marriage would only be granted when the marriage sought to be annulled is either a void marriage or a voidable marriage and where a petition for the annulment of the marriage is filed in court within twelve months of the marriage. 

A void marriage is one that in the eyes of the law is seen to have never existed. It is a marriage that from the very time it was contracted was not valid. The law does not recognise the marriage as having existed in the first place. In the case of a void marriage, the parties to the marriage might decide not to even go to court to obtain an order of nullity of the void marriage (where it is so clear cut that the marriage is void. An example is when one of the parties to the marriage at the time of the marriage was validly married to some other person) though it is advisable for the parties to obtain an order of court declaring the marriage void.

A voidable marriage on the other hand is one that is considered as valid and subsisting until a party to the marriage takes steps to obtain a decree of nullity, declaring the marriage void.  A voidable marriage remains valid until it is declared void, unlike a void marriage which is void from the very beginning whether or not steps to void it are taken. Once a voidable marriage is voided, it is then deemed never to have existed.

VOID MARRIAGE

The following marriages are void:

a.    When at the time of the marriage either of the parties is lawfully married to someone else, whether under customary law, Islamic law or even under the Marriage Act, or

b.    When the parties to the marriage are prohibited from marrying each other by reason of their relationship by blood or marriage. Earlier in the series we listed those prohibited persons and relationships. Or,

c.    Where the marriage is not valid because the parties did not comply with the law of the place where the marriage was done in the manner of celebrating the marriage. Examples include not celebrating the marriage in a licensed place of worship or not celebrating the marriage within the prescribed time of the day.

d.    Where there was no consent given by either party to the marriage or where the consent obtained is not a real one because –

i.    it was obtained by duress or fraud; or

ii.    one party is mistaken as to the identity of the other party, or as to the nature of the ceremony performed. Under this heading, if a party to the marriage misrepresents any fact to the other party such as who he truly is (his identity, profession, religion e.t.c, such that by virtue of that misrepresentation, the other party was induced to enter into the marriage contract then the marriage could be annulled. Where the other party did not know that he/ she was going through a marriage ceremony, then such a person can be said to be mistaken as to the nature of the ceremony performed and that marriage is void. Or,

iii.    a party is mentally incapable of understanding the nature of the marriage contract. Where a marriage is contracted with a person who lacks the mental capacity to understand that he or she is getting married, then the marriage is void.

e.    Either of the parties is not of marriageable age. Under the law, the parties must have attained the age of twenty-one (21) but if either of them is below that age, the consent of the father or if he is dead, the mother or if she is dead a guardian must be obtained in order for the marriage to be valid.

VOIDABLE MARRIAGE

A marriage would be voidable where at the point of entering into the marriage or contracting the marriage:
a.    either party to the marriage is incapable of consummating the marriage. Consummation of marriage refers to the first sexual relations which takes place between the husband and his wife after their marriage. The marriage is said to have been consummated when the couple have sexual intercourse; there must be penetration of the vagina by the penis.

Before reliance can be placed on this ground to annul a voidable marriage, there must be inability to consummate and not just a refusal to consummate the marriage. Thus where the man is unable to consummate the marriage because of impotency or where there is no opening in the woman’s vagina thus resulting in inability to consummate the marriage, this could be a ground for nullity of a voidable marriage. 

A marriage would not be annulled on this ground unless the incapacity also exists at the time the petition for annulment is being heard. A marriage would not be annulled on this ground if the incapacity is curable. Where however it is incurable or where the party suffering from the inability refuses to submit his/herself for medical examination in order for the court to determine whether or not it is curable, or when he/she refuses to be treated then the marriage can be annulled on this ground. If it is established that the party who is seeking to have the marriage annulled on this ground was aware of the incapacity before the marriage was entered into or at the time of the marriage, then he or she cannot rely on this ground for the dissolution of the marriage.

b.    either party to the marriage is- (i) of unsound mind, or (ii) a mental defective, or (iii) subject to recurrent attacks of insanity or epilepsy; 

c.    either party to the marriage is suffering from a venereal disease in a communicable form, or;

d.    the wife is pregnant by a person other than the husband (note that this must be at the point of the marriage and the man must not have known that his wife to be was pregnant with another man’s child at the time of entering the marriage.
Generally, any party who intends to rely on any of the foregoing grounds to have his/her marriage annulled must: 
1.    satisfy the court that he or she was not aware of the fact sought to be relied on for the annulment of the marriage at the time of entering into the marriage.
2.    file a petition in court for the annulment of the marriage not later than twelve months after the date of the marriage. Where a petition for the dissolution of a marriage is filed twelve months after the date the marriage took place, then the marriage would not be annulled but it could be dissolved.
3.    satisfy the court that ever since the discovery of the fact upon which he/she is placing reliance to seek an annulment of the marriage that he or she has not consented to any sexual intercourse with the respondent. 
A decree of annulment of marriage annuls the marriage from the date when the order of annulment becomes absolute. An order of annulment does not affect the legitimacy of any child born before or after the order is made absolute; neither does it affect the legitimacy of a child legitimated during the marriage.

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