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Civil Nullity

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Civil Nullity (or Civil Annulment) must not be confused with either Divorce or Church Annulments. This leaflet offers an explanation of the procedure, grounds and consequences of an Application for Civil Nullity. For information on Church Annulments, contact your Regional Marriage Tribunal, the address of which is available from your local church.

Q1: What is Civil Nullity?

A1: Civil Nullity is a Decree granted by the High Court or Circuit Court stating that the marriage in question is null and void and that no valid marriage ever existed. The parties are then single persons in the eyes of the law and are consequently free to remarry.

Q2: What is the difference between Divorce and Civil Nullity?

A2: A Divorce Decree declares that a marriage that did exist is now ended and dissolved, and it deals with the circumstances arising from that marriage, whereas a Civil Nullity Decree declares a marriage never to have been valid and consequently never to have existed.

Q3: What is the difference between a Civil Annulment and a Church Annulment?

A3:

  1. State Law is the law of the country whereas Church Law applies to that particular Church only.
  2. Where the Church grants annulments, the couple are still legally married.
  3. Church Annulment is not recognised by the State Law.
  4. Remarriage following church Nullity may be bigamous; children of such a marriage are regarded as non-marital.
  5. The first spouse retains Succession Rights.
  6. The first spouse is still regarded as a spouse by the Department of Social Welfare.

Although it is common for a person to seek a Church Nullity before seeking a Civil Nullity, neither this fact nor the Church Regional Tribunals should have any direct bearing on the outcome of the Civil Case.

Q4: When will a Civil Nullity be granted by the High Court/Circuit court?

A4: The Court will grant a Decree of Nullity where it finds that the marriage is void or voidable. Where the court finds that a marriage is void this means the marriage was never valid in any respect from the start of the marriage. If, on the other hand, the marriage is found to be voidable, then that marriage is valid until the Court declares it void, and if no proceedings are taken, it will remain a valid marriage. Once the Decree of Nullity is granted, the marriage is declared to be invalid from the moment of its celebration.

Q5: When is a marriage void?

A5: A marriage is void in the following circumstances:

  1. where there is a lack of capacity i.e.:
    1. One of the parties is already validly married.
    2. The parties fall within the prohibited decree of relationship.
    3. The parties are of the same sex.
    4. One of the parties is underage (18)
  2. Where the Ceremony has been carried out without the observance of certain legal formalities
  3. Where there is an absence of consent.

Q6: What is meant by absence of consent?

A6: A marriage should be a voluntary union entered into with free and full consent. While consent may seem free and full, it may in fact, be flawed. Absence of consent may arise where there is:

  1. Insanity: It must be established that one of the parties was insane or suffering from a mental illness at the time of the ceremony so that the person was not capable of understanding the nature of the contract and therefore could not have consented.
  2. Intoxication: It must be established that one of the parties was so intoxicated at the time of the ceremony that he/she was incapable of consenting.
  3. Mistake or Misrepresentation: If one of the parties is unaware that the ceremony is a marriage ceremony, then there is no consent. Mistake or misrepresentation as to the true identity of the other person may negate consent.
  4. Duress, Intimidation and Undue Influence: "If the apparent decision to marry has been caused to such an extent by external pressure or influence whether falsely or honestly applied as to lose the character of a fully free act of that person's will, no valid marriage has occurred." (Per Finlay CJ in NvK 1986) Each case is decided on its facts.
  5. An intention not to fulfill a fundamental term of the marriage contract, e.g. to consummate the marriage, to live together permanently.

Q7: When is a marriage voidable?

A7: A marriage is voidable

  1. when either party is unable to consummate the marriage.
  2. when either of the parties lacks capacity to enter into and sustain a normal marital relationship.

Q8: What does it mean, 'unable to consummate the marriage'?

A8: When one of the parties is unable to engage with the other in ordinary and complete sexual intercourse because of a physical defect or for some psychological reason. Infertility or a failure to ejaculate does not establish this ground.

Q9: What does it mean 'unable to enter and sustain a normal marital relationship'?

A9: Marriage is a union for life and just as the law recognises there is a physical element in a marital relationship, so too it recognises that there is also emotional and psychological element which is essential to a valid marriage. Where one of the parties to a valid marriage is at the time of the marriage suffering from a psychiatric disorder which may impair his/her ability to form and sustain a normal viable marriage, then the Court may declare the marriage invalid.

More recently, the Court has decided that a homosexual orientation may form the basis of a Decree where it renders one spouse incapable of entering into a relationship which should exist between married couples.

If this ground is alleged then the behaviour after the marriage has taken place will he considered relevant by the Court in establishing this ground.

Q10: Who can petition for a decree of Nullity?

A10: To establish that the marriage is voidable the Petitioner must be one of the parties to the marriage and therefore it can only be challenged by one of the spouses during the lifetime of both.

Where it is sought to establish that the marriage is void any person can petition the court, even after the death of the parties.

Q11: Is it difficult to establish or obtain a Decree of Nullity?

A11: There is a presumption in law in favour of validity where a marriage has been celebrated in proper form between two competent partners. The onus of proof is on the Petitioner (ie. spouse seeking the annulment). The courts expect a very high standard of proof.

Q12: Are there circumstances where the courts will refuse to grant a Decree even where one of the parties appears to have established grounds?

A12: Yes these arise where there is:

  1. Approbation: Where it is clear from evidence before the Court that the Petitioner accepted the marriage as valid even though he/she knew that it could be set aside, then approbation occurs and the Court may refuse the Decree. Approbation does not occur when the Petitioner was unaware that he/she could make an application for a decree of Nullity.
  2. Delay: Where a petitioner delays unnecessarily the Court may refuse the Decree. Delay can be used very effectively against a Decree being granted where impotence or inability to sustain a normal relationship is alleged.
  3. Collusion: Where the Court is satisfied that the parties have entered into an agreement to present the case so that the true situation is not disclosed; the Court may refuse to grant a Decree. An Affidavit that there is no collusion or connivance has to be sworn by the petitioner.

It should always be borne in mind that the granting of a Decree of Nullity is within the discretion of the Court and in cases where it is felt that to do so would involve great hardship, e.g. on a child of the union, it may refuse.

Q13: What are the effects of a Decree of Nullity?

A13:

  • The marriage is declared to be invalid from the moment of its celebration. Maintenance rights are affected except where dependent children are concerned. Maintenance can be paid until the Court grants the Decree and the Court may make an order for maintenance pending the determination of the case.
  • The parties are no longer spouses for the purposes of Domestic Violence Act 1996.
  • The rights under the Family Home Protection Act no longer apply. The Succession Act no longer applies between the parties.
  • The father of children in a voidable marriage has automatic rights of guardianship and in a void marriage will have automatic rights if at the time of the marriage he believed the marriage was valid. The court will presume that he so believed.
  • A prior voidable marriage when annulled will retrospectively validate a subsequent marriage. However, persons who remarry after a voidable marriage run the risk of criminal prosecution for bigamy.

 

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