NULLITY OF MARRIAGE. The re quisites of a valid and binding marriage lia,ve been considered in the article on that subject. If any of these requisites are wanting in a given ease, the. marriage is either absolutely void, or voidable at the election of one or both of the parties. The more usual imperfections which thus render a marriage void or voida ble are : 1. Unsoundness of mind in either of the parties. 2. Want of age; i.e. fourteen in males and twelve in females. 3. Fraud or error ; but these must relate to the essentials of the relation, as personal identity, and not merely to the accidentals, as character, condi tion, or fortune. 4. Duress. 5. Physical potence, which must exist at the time of the marriage and be incurable. 6. Consangui nity or affinity within the prohibited degrees. 7. A prior subsisting marriage of either of the parties. The fifth and sixth are taped canonical, the remainder, civil, impediments.
2. The distinction between the two is im portant,—the latter rendering the marriage absolutely void, while the former only ren ders it voidable. In the one case, it is nat necessary (though it is certainly advisable) to bring a suit to have the nullity of the mar riage ascertained and declared : it may be treated by the parties as no marriage, and wilt be so regarded in all judicial proceed ings. In the other case, the marriage will bs treated as valid and binding until its nullity is ascertained and declared by a competent court in a suit instituted for that purpose; and this must be done during the lifetime of both parties: if it is deferred until the death of either, the tnarriage will always remain good. But the effect of such sentence of
nullity, when obtained, is to render tbe inar riage null and void from the beginning, as in the case of civil impediments.
For the origin and history of this distinc tion between void and voidable marriages, see Bishop, Marr. & Div. c. 4.
3. A suit for nullity is usually prosecuted in the same court, and is governed by sub stantially the same principles, as a suit for divorce. Bishop, Marr. & Div. c. 15.
In its consequences, a sentence of nullity differs materially from a divorce. The latter assumes the original validity of the marriage, and its operation is entirely prospective. The former renders the marriage void from the beginning, and nullifies all its legal results. The parties are to be regarded legally as if no marriage had ever taken place: they are single persons, if before they were single; their issue are illegitimate ; and their rights of property as between themselves are to bs viewed as having never been operated upon by the marriage. Thus, the man loses all right to the property, whether real or per sonal, which belongs to the woman ; and the woman loses her right to dower. Bishop, Marr. & Div. 647, 659.
Neither is the woman, upon a sentence of nullity, entitled to permanent alimony ; though the better opinion is that she is en titled to alimony pendente lite. Bishop, Marr. & Div. a 563, 579-580. See Atimoriv.