Nullity

• Author: Fara Brown
• Profession: Attorney-at-law practising in Jamaica for over 30 years
• Pages: 31-64

2. Nullity

1. INTRODUCTION

2. A GENERAL OVERVIEW

3. NULLITY GROUNDS: THE LAW

•Bigamy

•Formalities

•Minimum Age

•Prohibited Degrees of Consanguinity and Afnity

•Consent

•Same Sex

4. PRACTICE AND PROCEDURE IN NULLITY

•Commencement

•Service and Default Proceedings

•Decree Nisi and Absolute

•Ancillary Relief

5. THE WAY FORWARD

INTRODUCTION

Mr and Mrs James came into the lawyer’s ofce together. They

held hands with each other; they looked into each other’s eyes,

and were obviously very much in love. Their instructions: to

terminate their marriage.

Mr James had been married before. He and the rst Mrs

James lived quite happily together until she went abroad to

work. The lengthy periods of separation took their toll on the

marriage, and they grew apart. One day, Mrs James called Mr

James and told him that the marriage was over, and he would

be getting the divorce papers in the mail. Sure enough, in a

few weeks’ time Mr James received several documents which

Family Law in Jamaica

32

indicated that his wife was divorcing him. Mr James carried

on with his life and a few months later met the second Mrs

James to be. There followed a whirlwind romance, and by the

time Mr James popped the question he was condent that his

rst marriage had ended. Mr James married the second Mrs

James and settled down to another round of marital bliss. It

was in the course of travelling abroad (to the country where

the rst Mrs James still resided) that he discovered that at the

time of his second marriage the proceedings instituted by the

rst Mrs James had not yet been completed. Upon further

enquiry, Mr James found out that the second marriage and

the divorce took place within a matter of weeks. Unfortunately,

for Mr James it was the marriage that had come rst, not the

divorce. Mr James wanted to know if there was any chance of

his second marriage being valid from the point that the divorce

had been granted. If it was not, then he wanted to terminate

the marriage so that he could marry his wife properly.

A GENERAL OVERVIEW

Prior to the introduction of divorce proceedings by statute in

1879, the only feasible way for most people to bring a marriage to

an end was by annulment.1 This in itself was a complicated process

governed by canon law that deterred all but the most determined

and resourceful. Nullity is an area of law which emerged when

marriage was under the control of the church, and as such many of

the grounds upon which a marriage can be annulled originate from

the reasoning of the church as to the role and purpose of marriage

in the religious sense. The heart of the matter is that the church,

and hence the law, recognized that some defects in the marriage

where of such a fundamental nature that it could not be said that

there was a true marriage. Even though divorce proceedings have

completely eclipsed nullity as the accepted means of terminating

1. It was possible to bring a private bill to the legislature for an enactment

terminating a marriage, but this was an option only for those with the resources

to take such a step.

Nullity

33

a marriage in modern times, statutory provisions concerning the

validity of marriage and the circumstances in which the marriage

may be declared null and void may at times be invoked by way of

nullity proceedings in the court.

Where one or in some cases more than one ground of nullity

is established by the court, the result is that the marriage will be

annulled or, in other words, declared void. Historically, the result of

annulment could be devastating: children became illegitimate at

the stroke of a pen, and drastic changes in inheritance rights could

occur. The courts, therefore, took a strict approach to annulment:

According to Dr Lushington in Catterall v Sweetman: 2

…it must always be remembered that a marriage is essentially

distinguished from every other species of contract whether

of legislative or judicial determination…that not only is all

presumption in favour of the validity and against the nullity of a

marriage, but it is so on principle; that a legislative enactment to

annul a marriage de facto is a penal enactment, not only penal

to the parties, but highly penal to the innocent offspring and

therefore to be construed according to the acknowledged rule

most strictly.

The impact of nullity and the hardship that it could bring have

been mitigated in many areas by successive instances of legislative

intervention,3 but some of the vagaries still remain and go for the

most part unnoticed.4

As was recognized in Catterall, nullity is an area of law where the

concept of marriage as a contract is pronounced, and much of the

terminology rests on constructions derived from the law of contract.

So Caribbean jurisdictions, in adopting the English law, recognized

two premises upon which a marriage may be annulled:

1. Where the marriage is void.

2. Where the marriage is voidable.

The grounds that were originally deemed to make the marriage

2. (1845) 63 ER 1047.

3. Legitimation Act, section 6(1), Divorce Law, section 9.

4. Nullity procedure is slightly different from that of dissolution.