What is a voidable marriage?
A marriage is voidable if it was formed in breach of critical statutory provisions in the Women’s Charter, which allow one spouse the option to declare the marriage void. Put another way, the Women’s Charter allows the spouses the options to treat the marriage as valid or to declare that the marriage is void.
Situations in which a marriage is voidable are as follows:
Non-consummation due to inability.
Non-consummation due to refusal of one party.
Lack of valid consent to the marriage.
Lack of mental capacity to consent to the marriage.
Sexually transmitted disease being present in one spouse at the time of the marriage.
Wife was pregnant by another man at the time of the marriage.
In the situation of non-consummation due to the refusal of one party, the party who refuses to consummate the marriage cannot apply to have the marriage declared void.
Unlike a divorce, there is no need to wait before seeking the Judgment of Nullity to declare the marriage void. The court will not allow the marriage to be declared void if the party applying for the Judgment of Nullity knew about the facts that would allow the marriage to be declared void, but chose to go ahead with the marriage anyway. The court will also not allow the marriage to be declared void if it is unjust to do so to the spouse who is the defendant in the application.
