NULLITY OF MARRIAGE, a judicial declaration that a marriage was null and void ab initio (from the beginning). In the 12th century the Roman law doctrine of nullity of marriage was developed in order to deal with hard cases under the principle of the indissolubility of marriage laid down by the Church of Rome, whose canons at that date governed the matrimonial law for the whole of Christendom. Nullity could be sued for on the grounds of affinity, into which the law of adoption entered very largely, or a previous unconsummated marriage, which latter was a ground for nullity in England as late as 175o. There were, and continue to be in Roman Catholic countries, various other grounds for nullity, but the grounds of nullity in England are at present limited to the following: (I) Where the parties are not by reason of age (14 for a male and 12 for a female), mental capacity, or otherwise capable of contracting marriage; (2) where the parties are within the prohibited degrees of affinity or relationship; (3) where one of the parties is already married; (4) where one of the parties does not freely consent to marry the other or does not understand the nature of the contract or ceremony; (5) where certain forms have not been observed; (6) where the form of marriage is essentially polygamous. Forms of marriage which offend against these rules are void ab initio. If at the time of the marriage one of the parties is and continues to be incapable of consummating the marriage by reason of some incurable physical defect, or of some incurable mental disability on the part of the man preventing him from consummating the marriage, or on the part of the woman resulting in her refusal of marital rights, the marriage may be annulled on the petition of the other party. A person may claim as a ground of nullity that he or she was insane at the time of the marriage. For the prohibited degrees of affinity see MARRIAGE.
The Royal Commission on Divorce which reported in 1913 recommended the following additional grounds of nullity of mar riage : When the other party, though of sufficient under standing to consent to a marriage, is at the time of the marriage either of unsound mind in other respects, or in a state of in cipient mental unsoundness which becomes definite within six months after marriage, and the first party is at the time of the marriage ignorant of the defect, provided that (a) the suit is in stituted within a year of the celebration of the marriage ; (b) there has been no marital intercourse after discovery of the de fect ; where the other party at the time of the marriage is subject to epilepsy or to recurrent insanity, and such fact is concealed by such party or his or her parents or either of them, or by anyone who has control over such party and is aware of the intended marriage, and the first party remains ignorant of the fact at the time of the marriage, subject to the same limi tations for petitioning as in (I) above; (3) where one of the parties at the time of the marriage is suffering from a venereal disease in a communicable form, and the fact is not disclosed to the other party ; (4) where a woman is pregnant by some other man at the time of the marriage and the husband is ignorant of the fact ; (5) where there has been wilful refusal, without reason able cause to allow intercourse, and where in fact there has been no intercourse owing to such refusal. (See also DIVORCE.)
See W. Rayden, Practice and Law in the Divorce Division (2nd. ed., by C. Mortimer, 1926) ; Sir L. Dibdin, Reformatio Legum Ecclesias ticarum, vol. iii. (1912) ; Report of the Royal Commission on Divorce and Matrimonial Causes (1913). (W. LA.) United States.—Three different situations relating to the nullity of marriage must be distinguished. A marriage may in the first place be totally void. No suit is necessary for its annulment and third parties can set up the fact of its invalidity. This, for example, is generally true of a bigamous marriage. Secondly, a marriage may be voidable at the election of one of the parties. No judicial decree is in theory necessary, though it is customary to secure a judicial declaration of nullity. Non-age of a party generally permits him thus to avoid the marriage, rendering it invalid ab initio, but until avoided by the act of the party it is valid, and third parties have no rights to contest its validity. Thirdly, as in the cases of marriage within the prohibited degrees of affinity, a suit to annul the marriage may be essential and such suit must be brought within the lifetime of one of the parties. The decree of annulment also relates back to the time of the marriage. The chief tendencies manifested by the many statutes in this field, apart from specifying the grounds for annulment, relate to: preserving the legitimacy of children born prior to the decree of annulment ; making all annulments dependent upon judicial action and, in some instances, permitting the court in its discretion to deny or withhold relief ; limiting the right to sue for annulment to a short space of time after discovery of the cause for annul ment ; permitting courts to award alimony upon decreeing annul ment ; allowing the injured party to a subsisting marriage to bring suit for its annulment ; permitting courts in their discretion to hold trials for annulment in camera.
The grounds for annulment commonly recognized are : bigamy, impotency, non-age, marriage within the prohibited degrees of affinity, non-compliance with an essential statutory formality, mental incapacity existing at the time of the marriage. Among grounds that are recognized in some States by legislation, though not generally recognized, are : fraud, duress or mistake in the granting of consent to marriage, wilful refusal of a party to consummate the marriage by sexual intercourse, venereal disease or other serious illness existing at the time of the marriage and unknown to the other party, pregnancy due to some third party at the time of marriage and unknown to the other party. The causes for annulment are now generally specified by statute and these vary from State to State. Wide legislative activity in this field is due to the fact that in the United States no courts suc ceeded to the jurisdiction of the English ecclesiastical courts. Con sequently no action for annulment on grounds entertained by the English ecclesiastical courts could be maintained in the absence of statute though equity courts would entertain such actions on grounds other than the canonical disabilities. Under such a theory the intervention of the legislature became necessary and in short time legislation expanded to bring the entire field within its control.