Void, voidable
and putative
marriages
Chapter 6
Void marriages:
Is never actually a marriage
Void ab initio
Legal consequences

No legal consequences, because marriage never came into
existence.

Courts have no discretionary power to declare marriage void.

Court may give declaratory order for clarity.
Grounds for nullity
• Requirements for a civil marriage.
• Marriage suffers from a critical defect that cannot be fixed.
Examples:
1. Marriage is solemnized by someone who is not a competent
marriage officer
2. No witnesses present at marriage
3. One party is already married
4. The parties are related to each other within the prohibited
degrees of relationship
5. One of the parties is below age of puberty
6. One of the parties is mentally ill
Voidable marriages:
Is actually a marriage
What is a voidable marriage?

A voidable marriage is valid for all purposes unless the court grants a
decree of nullity on the grounds of a defect which already existed at
the time of the marriage ceremony.

Marriage suffers from a defect (not critical).

One / both parties can apply to court to have the marriage annulled.
Legal consequences
i.
Valid, until or unless set aside by court.
ii. If annulled (set aside) –legal consequences as if parties never
entered into marriage and parties must be put in financial
position that they would’ve been in had the marriage never
taken place. (retroactive effect) no sharing of marriage
property as there would be in a “divorce”. Court will protect
contracts with 3rd parties.
iii. Children will be regarded as “legitimate” children born of the
marriage
iv. Grounds for nullity
v. Requirements for a civil marriage.
E.g. misrepresentation – not knowing about sterility
Putative marriages:
A putative marriage is a void marriage which suffers from a critical
defect.

The marriage cannot be saved or declared valid by a court.

HOWEVER, the marriage may be deemed putative, if one or both
of the parties to the marriages was unaware of the critical
defect rendering the marriage void at the time of the wedding.

Requirements for a putative marriage?
When one/both parties unaware of defect, Which renders
the marriage void, Party(s) must in good faith believe they
are entering into a valid civil marriage
(e.g.-parties did not know that they were related within
the prohibited degrees of relationship).

Consequences of a putative marriage?
Is void ab initio, it has some of the legal consequences of
a valid marriage for as long as at least one of the parties is
bona fide, one of the parties on reasonable grounds was
unaware of defect that renders the marriage void. Court
will make declaratory order that children were
“legitimate” and born of a marriage
Moola v Aulsebrook

Court had to decide whether or not a putative marriage can come into
existence if the marriage was not duly solemnized.

The applicant & deceased husband had an Islamic marriage ceremonypriest was not a duly appointed marriage officer but they didn’t know that
& didn’t know they had to be married by a duly appointed marriage officer.

The spouses lived monogamously from wedding until his death. When he
died it was discovered that his will was invalid so estate had to devolve
intestate but his kids couldn’t inherit due to illegitimacy (at that time).

Application to court was based on argument marriage was a putative
marriage even though the statutory requirements for solemnization of a
marriage had not been complied with.
Solomons v Abrams

Parties entered into a Muslim marriage

no evidence they attempted/intended to comply with the requirements of the
Marriage Act

nor did they make any attempt to establish what those requirements were.

They did not think that they had entered into a civil marriage. The priest did not
hold himself out as being authorized to solemnize a civil marriage.

Applicant sought an order declaring that the union between the parties was
putative civil marriage & that the children born thereof were legitimate. The
application was dismissed.