Void marriage

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A void marriage is a marriage which is unlawful or invalid under the laws of the jurisdiction where it is entered. A void marriage is "one that is void and invalid from its beginning. It is as though the marriage never existed and it requires no formality to terminate." [1]

A marriage, however, which can be canceled at the option of one of the parties is merely voidable, meaning it is subject to cancellation if contested in court. A marriage that is entered into in good faith, but which is subsequently found to be void, may be recognized as a putative marriage and the spouses as putative spouses, with certain rights granted by statute or common law, notwithstanding that the marriage itself is void.

History

According to Paul J. Goda the distinction between void and voidable marriages arose in the context of a jurisdictional dispute between the civil and ecclesiastical courts. The civil courts held jurisdiction over property matters, while the church retained jurisdiction over the validity of marriages. There was an overlap in cases of inheritance where it was necessary to determine the legitimacy of putative heirs. With the Reformation the focus shifted from marriage as a religious matter to that of a civil contract. "Early American courts accepted the distinction between canonical and civil disabilities as the rationale for void (civilly disabled) and voidable (canonically disabled) marriages."[2] Colonial courts followed the Common Law view in looking to the capacity of the parties to enter into a legally binding contract.

Generally

In general, a marriage is void (as opposed to voidable) if:

  • The parties' degree of consanguinity is too close - for example, a brother and sister or a parent and a child. Different jurisdictions have different lists of prohibited incestuous relationship.
  • A party to the marriage is forbidden to marry as a result of losing their civil rights, such as for conviction of a crime.
  • The form of the marriage is forbidden by statute - such as same-sex marriage (in some jurisdictions) or group marriage. Attempts to espouse a Ford motorcar[3] or a "porn-filled Apple computer"[4] have been dismissed as void.
  • There is a pre-existing marriage by at least one of the parties, and the subsequent marriage may also constitute a crime of bigamy.

Most jurisdictions recognise the validity of marriages performed in another jurisiction. However, a jurisdiction where the parties to the marriage normally reside may not recognise a "foreign" marriage. Common reasons for a court to find a marriage void ab initio are that the marriage is incestuous, polygamous, a same-sex marriage,[5] or a group marriage.

New York law

Under the Domestic Relations Law of New York state, all incestuous marriages are void, but this does not include cousin marriages of any degree:

§ 5. Incestuous and void marriages. A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:
1. An ancestor and a descendant;
2. A brother and sister of either the whole or the half blood;
3. An uncle and niece or an aunt and nephew.
If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void...|N.Y. D.R.L., §5, found at [6]
§ 6. Void marriages. A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either:
1. Such former marriage has been annulled or has been dissolved for a cause other than the adultery of such person; provided, that if such former marriage has been dissolved for the cause of the adultery of such person, he or she may marry again in the cases provided for in section eight of this chapter and such subsequent marriage shall be valid;
3. Such former marriage has been dissolved pursuant to section seven-a of this chapter. (This is regarding annulment of a voidable marriage.)| N.Y. D.R.L., §6, found at [7]

U.K. Law

Under the law of the United Kingdom, a void marriage is "one that is considered never to have taken place, whatever procedure may have been followed by the people concerned." [8] The relevant legislation is the Matrimonial Causes Act 1973[9] which has been amended by the Divorce (Religious Marriages) Act 2002 and the Marriage (Same Sex Couples) Act 2013 among others.

Grounds for determining a marriage void as against public policy include consanguinity, one of the parties is under the age of sixteen, or that at the time of the marriage either party was already lawfully married. If a marriage was not legally valid, the law says that it never existed.[10]

References

See also