Prior to the introduction of divorce in Irish law, a nullity decree was one of the few ways of ending a marriage. This article will explain what is meant by a decree of nullity, the conditions upon which such a decree is granted and the consequences of such a decree.
What is a Decree of Nullity?
A decree of nullity is a declaration that a marriage never existed. The marriage is legally “erased”, unlike a divorce situation, whereby the marriage certainly existed but is then legally terminated.
At this juncture, it is important to point out the difference between a church annulment and a decree of nullity. A church annulment does not legally declare a marriage to be null and void. However, it allows either party to remarry in the eyes of the church.
When is a Decree of Nullity Granted?
There are two types of marriages which may be annulled: void marriages and voidable marriages.
A void marriage is one which is deemed to have never legally existed at all. In theory, where a marriage is void, there is no legal requirement to seek a decree of nullity. However, such a decree should be sought for clarity.
There are three grounds upon which a marriage may be declared void:
- Non-observance of Formalities
An example of a formality of marriage is the legal requirement to give at least three months’ notice in writing to the Registrar of marriages of an intention to marry.
- Lack of Capacity
A marriage may be declared void if either or both parties were incapable of entering into a valid marriage, for example, if either or both parties were already validly married to somebody else.
- Lack of consent
This is by far the most common ground upon which a nullity decree is sought. For example, a party may argue that, at the time of marriage, he or she was under duress or undue influence or either party was suffering from a psychiatric illness preventing him or her from fully and freely consenting to the marriage.
Unlike a void marriage which technically does not require a decree of nullity, a voidable marriage is one which remains valid until a decree of nullity is granted by a Court.
A decree of nullity may be granted in respect of a voidable marriage if either party was unable to consummate the marriage or if either party was unable to enter and sustain a normal marital relationship.
Effects of a Decree of Nullity
Once a decree of nullity is granted, the marriage is declared to have never existed. Unlike a divorce situation, the court does not make orders as to maintenance and there is no provision for ancillary relief.
Therefore, while there has undoubtedly been a marked reduction in the number of nullity decrees sought since the introduction of divorce in Ireland, nullity remains to be a preferable option for those who believe that their marriage never validly existed.