NULLITY OF VOID AND VOIDABLE MARRIAGE
In some cases even though the parties are supposedly married, it is possible that the marriage is not valid or legally binding. In which case you can say that the marriage is void, that is invalid from the beginning.
In other cases the marriage might have been valid from the start but can be annulled by one of the parties due to certain reasons.
Circumstances that will make a marriage void
A marriage will be said to be void in the following circumstances
- Either of the parties was at the time of the marriage lawfully married to another. The Marriage Act makes it an offence where one contracts marriage under the Act when already married under native law. While Lagos state has removed this as an offence in its law, the Marriage Act is a federal law and therefore applies to Lagos state.
- The parties are related by blood or by marriage.
- The marriage did not meet the requirement of the place where it was contracted
- The parties did not give consent. An example is where the consent was obtained by fraud, duress, misrepresentation or mistaken identity.
- Where either of the party is not of marriageable age, that is 18 years.
- Where both parties have knowingly and willfully acquiesced to the solemnization of the marriage in a place not licenced or a person not licenced
Circumstances that will make a marriage voidable
A voidable marriage is valid until either of the parties annul it by an order of the court. A marriage will be said to be voidable in the following circumstance
- Where at the time of the marriage either of the party to the marriage is incapable of consummating the marriage. That is the inability to have sexual intercourse.
- Either party to the marriage is of unsound mind (mentally defective insane, epileptic).
- The wife is pregnant by another person, not the husband
- Can any of these factors be condoned? the answer is yes. if the party reveals these facts and the other party accepts them.
Note also that the court will refuse to make a decree of nullity
- where the petitioner had knowledge of the incapacity of the spouse at the time of the marriage.
- if the conduct of the petitioner has been unfair to the spouse
- where you knew of the incapacity and stayed in the marriage for 2 years
- where the marriage has been consummated
In the above instances, the correct application to make will be a petition for nullity of marriage, not dissolution of marriage or divorce. while the court will grant a decree for nullity