05 April 2010

Remarrying After a Void Marriage

Not every marriage needs to end in death or divorce. Some marriages are voidable and others are void from the get go. How do you remarry if you're in a marriage which is void or might be voidable?

A marriage may be voidable if:
  1. the marriage was a sham;
  2. a male spouse was under the age of fourteen or a female spouse was under the age of twelve at the time of the marriage;
  3. one or both spouses didn't consent to the marriage, or agreed to the marriage as a result of fraud or misrepresentation;
  4. a male spouse was impotent or a female spouse was sterile at the time of the marriage; or,
  5. the marriage cannot be consummated as a result of a spouse's medical or mental condition.
If a party to a voidable marriage wants to remarry, a judge must either declare the marriage to be void, annulling the marriage, or make a divorce order. With the court order in hand, go to your local branch of the Vital Statistics Agency and get your marriage licence!

A marriage may be void if:
  1. one or both spouses were under the age of seven at the time of the marriage;
  2. the spouses are within the prohibited degrees of consanguinity set out in the federal Marriage (Prohibited Degrees) Act;
  3. one or both spouses didn't have the mental capacity to marry at the time of the marriage; or,
  4. one or both spouses were married at the time of the marriage.
Marriages which are void are void ab initio, from the very beginning, as if they were never celebrated. As a result, you don't need either an annulment or a divorce; your marriage never existed in the first place! You can proudly declare yourself to be unmarried when applying for your marriage licence.

If you run into a situation where you need proof that your marriage was void, the only solution I can think of would be to commence a Supreme Court petition proceeding asking for a judicial declaration that your marriage is void.

4 comments:

  1. re: commencing a supreme court petition proceeding asking for a judicial declaration that my marriage is void, does it really takes 2 years to have the declaration as my lawyer told me?

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  2. I can't give you legal advice in this forum. I'll just strongly encourage you to get a second opinion and leave it at that!

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  3. if the the court declare my first marriage void. does it means that my second marriage is valid?

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    1. This would only be an issue if you got married to someone else before you had gotten a divorce from the first person you were married to. If that's what happened, a judge declaring your first marriage to have been void would make the second marriage valid, because you wouldn't have gotten married - the second time - while still being married to someone else. However, there are a lot of reasons why a marriage could be invalid and you should talk to a lawyer in your neighbourhood to get some proper legal advice.

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