NULLITY OF MARRIAGE. The requi sites of a valid and binding marriatge have been considered in the article on that sub ject. If any e these requisites are wakting in a givwcmse, the rnsirriage is either abso lut vuid, or voidable at the election of one both of the parties. The more usual which thus render a marrikge void or voidable are:., 1. Unsoundness of mind in either of the parties. 2. Want of agr i f. font. in males and twelve in pl 3. 3. • d error ; but these must r to tl ?tials of the relation, as ', .1. , and not merely to the seciacr t•• z as character, condition, or for tune. 4. Duress. 5. Physical impotence, which must exist at the time of the marriage and be incurable. 6. Consanguinity or af finity within the prohibited degrees. 7. A prior subsisting marriage of either of the parties. The fifth and sixth are termed canonical, the remainder, civil, impediments.
The distinction between the two is im pOrtarit,—the latter rendering the mar riage absolutely void, while the former• only renders it voidable. In the one case, it is not necessary (though it is certainly ad visable) to bring a suit to have nullity of the marriage ascertained and declared: it may be treated by the parties as no mar riage, and will be so regarded in all judi cial proceedings. In the other case, the marriage will be treated as valid and bind ing until its nullity is ascertained and de clared by a competent court in a suit in stituted for that purpose; and this must be done during the lifetime of both parties: if it is deferred until the death of either, the marriage will always remain good. But the effect of such sentence of nullity, when obtained, is to render the marriage 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 1 Bish. Mar. Div. & Sep. § 252.
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 ; 2 Bish. Mar. Div. & Sep. § 39.
In its consequences, a sentence of nullity differs materially from a divorce. The lat ter assumes the original validity of the marriage, and its operation is entirely pro spective. 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 had ever taken place : they are single persons, if before they were single; their issue are illegitimate; and their rights of ptoperty as between themselves are to be viewed as having never been operated upon by the marriage. Thus, the man loses all right to the property, whether real or personal, which belongs to the woman ; and the woman loses her right to dower ; 2 Bish. Mar. Div. & Sep. §§ 907, 1597.
A woman domiciled in England at the time of her marriage with a foreigner may,— after he has debarred her from claiming any relief in the courts of his (foreign) domicile by obtaining there a decree of nullity,—peti-, tion the court of her own domicile to which she has reverted and obtain a decree there dissolving her marriage; [1913] P. 46.
The jurisdiction where the ceremony was performed creates the marriage and alone can annul it; Cummington v. Belchertown, 149 Mass. 223, 21 N. E. 435, 4 L. R. A. 131; [1908] P. 46. Entire absence of cohabitation or 4ncapacity to consummate marriage is ground for nullity; [1905] P. 231.
'Where a woman of 56 married a man of 69 and lost her pension by the marriage, a decree of nullity on the ground of his phys ical incapacity was refused; the court saying that as she had lost her pension by gaining a husband, she could not exchange aPili Hatch v. Hatch, 58 Misc. 54, 110 N. Y. SuPP 1,8.
As to venereal diseases in the law of mar riage and divorce, see 37 Am. L. Rev. 226.
A woman, upon a sentence of nullity, is not entitled to permanent alimony ; thOui the better opinion is that she is entitled to alimony pendente Mite; 2 Bish. Mar. Div. & Sep. § 907, 1597.
See ALIMONY; MARRIAGE; DIVORCE; Burge, Col. Law, Renton & Phillimore's ed.