Void and Voidable

The distinction between a void and voidable marriage is important. A void marriage is void as and from the outset.  It is a nullity and deemed always to have been of no effect.

A voidable marriage is void only from the date of a decree of nullity.  It may become impossible to nullify a voidable marriage by reason of later circumstances.  It is valid until the decree is made.

Technically, it is not necessary to obtain a decree in respect of a void marriage.  However, this is desirable in order to establish the position where an ostensibly valid marriage has been contracted.

Only a spouse may challenge the validity of a voidable marriage.  It must be done during the life of the other spouse.  In the case of a void marriage, any parties including relatives, et cetera, tracing relationship and other interested parties, may challenge or establish the validity of the marriage.

Proof and Evidence

The onus is on the petitioner to prove that a marriage is invalid on the balance of probabilities.  If parties have gone through a ceremony of marriage, there is a presumption that they are husband and wife.

Psychiatric, psychological and other expert evidence or medical evidence will be required in many nullity cases.  The court may appoint a medical inspector to carry out a psychological assessment.  The inspector acts at the direction of the judge. Fair procedures must be followed.

Foreign Nullity

Where a marriage has been annulled either in the state or under a foreign annulment, either party may apply to court within three years to determine questions arising as to the title or possession of property.  The application must be made within three years of the parties ceasing to live together, in the case of a void marriage which has not been annulled.

The court in granting a decree of nullity, may declare a spouse to be unfit to have custody of dependent children.

Lack of Capacity

The parties to an ostensible marriage may lack capacity for any of the following reasons.

  • formerly, they were not male and female (prior to marriage), (before Marriage Act 2015)
  • they were married to another person at the relevant time,
  • they are not over 18,
  • they are within the forbidden degrees of relationship.

The court, on the application of parties to an intended marriage, may consent to marriage, notwithstanding that one or both of the parties is under 18.

The failure to comply with formalities does not render the marriage void unless the parties knowingly celebrate a ceremony of marriage without an essential formality.

Negation of Consent

As in contract law, the requisite consent for a marriage may be rendered void by a range of external circumstances.  The marriage must be voluntary and consent must be freely given.  Accordingly, in the same way as with contracts, consent may be rendered void by duress, undue influence, mistake, fraud, mental incapacity and complete failure to enter a contract.

Duress which involves the threat of violence or incarceration, will readily negate consent and render a marriage void. As part of their expansive interpretation of nullity prior to the legalisation of divorce in Ireland in 1996, the Irish courts have a taken a broader view of duress.  Cases, where persons were put under extreme or other intense psychological pressure, have been allowed as sufficient to negate consent in a number of cases.

If the apparent decision to marry has been caused to such an extent by external pressure or influence, whether falsely or honesty applied or otherwise, it may lose the character of free will so that no valid marriage has occurred.

Forced Marriage Offence

A  person commits  an offence if  they  use  violence,  threats,  undue  influence  or  any  form  of  coercion  or duress for the  purpose of causing another  person to  enter  into  a  marriage. It is also an offence to remove  another person from the State with the intention that they will be forced into a ceremony of marriage.


As with contracts, mistakes will very rarely render a marriage void. Classically, mistakes as some attribute, such as health and wealth is insufficient. Even fundamental mistakes regarding circumstances, the nature of other party, et cetera, would be insufficient to negate consent of itself.

A mistake as to the nature of the ceremony would negate consent.  Where the person who did not believe he is undertaking a ceremony of marriage may be sufficiently mistaken so as to negate consent in this sense.

Lack of Understanding

A person who lacks the capacity to enter a contract is likely to lack the capacity to enter a marriage.  If he isn’t capable of understanding the nature of the relationship and the responsibilities of being intimate, the marriage may be void.

The Marriage of Lunatics Act,1811 deems a person who has been found of unsound mind to be incapable of contracting a marriage.  However, a person who is not formally found to be of unsound mind/lacking mental capacity but is suffering from mental illness, drug or alcohol addiction or emotional immaturity usually has the requisite capacity.

However, in principle, in an extreme case, he or she might be found to be incapable of understanding the nature of marriage and incapable of giving a full free consent.  Most such circumstances are more likely to constitute a voidable marriage in the circumstances set out below.

Informed Consent

In some cases, the absence of valid consent may result from emotional immaturity, which may be psychologically categorized as a particular condition or disorder.  In some such cases, the courts may find that the party is incapable of giving full, free and informed consent.

The Supreme Court has held that the absence of adequate knowledge of some very fundamental matter or circumstances may negate informed consent.  By way of exceptions to the general rules regarding mistaken misrepresentation, the Supreme Court held that where there are very material circumstances, such as the other party suffering from severe psychological conditions which were not disclosed, that this could be sufficient to negate informed consent.

The matter must relate to something of vital significance.  The cases involve some serious condition disposition or proclivity rather than conduct or character generally.  The distinction is between conduct and incapacity.  Concealed misconduct or misrepresentation is not sufficient.  One party not being what the other party thought them to be, is insufficient grounds.

Impotence/ Non-Consummation

A longstanding ground on which a marriage may be declared voidable is the inability to consummate the marriage.  To this ground, the Irish courts added wider grounds of psychological and emotional maturity grounds whereby there was a lack of capacity, from the outset, to enter and sustain a normal lifelong functional marital relationship as a ground.

Impotence requires the inability to have sexual intercourse. If intercourse has occurred, even once, then the marriage is regarded as consummated and is valid. A person may be physically capable of the person of consummating a marriage but may be psychologically incapable.

The willful refusal, however, to engage in a sexual relationship is impotence for this purpose, but it may be the basis of an alternative ground for an annulment. The ability to conceive or ejaculate is not required.  However, the ability to maintain normal sexual relations is required.

Non-consummation may be due to physical or psychological causes. Psychological impotence must be more than a refusal to consummate.  The incapacity may be relative to the other partner.  It must be in practical terms, incurable.  It is regarded as incurable if the party concerned refuses to undergo treatment, or if the party can only be cured by a dangerous course.

A spouse may rely on his or her own impotence, where it can be shown that the other spouse has repudiated the marriage.

Capacity for Normal Relationship

Where one party is capable of consenting but is incapable of sustaining a normal marital relationship, the marriage may be voidable.  There may be some overlap between the two grounds. Persons with severe psychological problems may be both incapable of making rational decisions such as the contract to marriage and be also incapable of sustaining a normal marital relationship.

The Irish courts evolved the grounds of a lack of capacity to enter and sustain a normal lifelong functional marital relationship in the 1980s.  By analogy with impotence, it was regarded as a fundamental impediment to a marital relationship.

The Irish courts evolved this ground emphasising the emotional and psychological relationship.  The Supreme Court affirmed the ground in the early 1990s.  It emphasized that the ground applied both in the case of psychiatric and mental illness and also cases where some inherent quality or characteristic existed which could not be regarded as self-induced.  This might include emotional maturity, sexual orientation or psychiatric illness, which impacts on the ability to enter a loving marital relationship.

Severe emotional immaturity of a psychiatric nature may negate consent on the part of the other party or could be such as to render the person affected incapable of maintaining a normal marital relationship.  The degree of emotional immaturity must be severe or must be generally capable of being categorized in psychiatric or psychological terms as a disability or a disorder.

Unlike the case of impotence and reversing earlier case law, the Supreme Court took the view that a person may rely on one’s own inability to form a normal marital relationship as a ground to petition for nullity.

Mental Illness

The fact that a person suffers from mental illness doesn’t mean that he or she is necessarily incapable of entering and sustaining a marital relationship.   In most cases, the condition would need to be diagnosed and categorized as a recognised condition of a relatively severe nature before it could be the basis for a declaration of nullity.

Mental illness in itself is not sufficient to constitute grounds for nullity.  It may be sufficient in the circumstances to be such that the party is incapable of forming a normal marital relationship, provided the other party does not know of it before marriage.

Bars to Nullity

There are a number of bars to the “voidable” grounds of nullity.  Where they apply, the right to seek a nullity is lost.

Approbation is acceptance by the petitioner for nullity of the circumstances, knowing what they are.  It arises when the person claiming nullity has accepted that the marriage is valid after he or she knows of the right to have it set aside.

The person concerned must be aware of the relevant facts and be aware that they are sufficient at law to constitute a ground for nullity.

Delay may be a form of approbation. Mere delay is not necessarily approbation and acceptance.  They may be explained by a lack of knowledge that grounds for nullity exist.

Fraud and Collusion

The courts are vigilant of cases of nullity based on collusive grounds, in particular in the period before the enactment of divorce law. A collusive case is a manufactured case.   Collusion involves the presentation of fraudulent or apparent evidence in order to obtain a court remedy.

The court, of its own motion, will examine whether there are circumstances which suggest collusion.  The motivation for collusive nullity proceedings was greatly reduced by the availability of divorce.


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