4. NULLITY/PEMBATALAN PERKAHWINAN
CHECKLIST
Lord Green MR in De
Reneville v De Reneville
[1949]
Actions can be taken by Everyone Parties to the marriage
S.68 – Any husband/wife may present a petition to the court praying for a decree of nullity
in respect of his/her marriage refers to both void & voidable marriage
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VOID – S.69
(a) Existence of a valid marriage Marriage must be monogamous
- Polygamous marriage Must be in accordance to S.5(1) & S.6
Lord Penzance – Hyde v Hyde:
“Marriage is a voluntary union between
a man & a woman…”
Whiston v Whiston [1995]
Re Estate of Liu Sinn Minn, decd [1975]
(b) Under age marriage Parties of the marriage must achieve
- Party to the marriage being a age requirement – S.10 & S.22(6)
minor Male: 18 yo
Female: > 16 < 18 without special
license granted by the Chief Minister
Indarjit Singh v Jinder Pal
- P filed a petition for the dissolution
of his marriage to the R
- Petitioner: 23 yo
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CVD – Contagious Vulnerable Disease
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- Respondent: 15 yo
- The marriage in this case is invalid &
the petition for divorce was
therefore dismissed
(c) Prohibited degrees S.11
Exception for Hindu professes: S.11(6)
Elliot & Anor v Gurr
(d) Same-sex marriage The parties must be 1 man & 1 woman
- Requirement of a valid gender Lord Penzance – Hyde v Hyde:
“Marriage is a voluntary union between
a man & a woman…”
Corbett v Corbett (otherwise Ashley)
[1970]
- The parties had gone through a
marriage ceremony
- At that time the petitioner knew that
the respondent had been registered
at birth as a male and had 3 years
earlier undergone a sex-change
operation consisting in removal of
the testicles & most of the scrotum
& the formation of an artificial
vagina & had lived as a woman
- They had lived together in
matrimony for only 14 days
- The petitioner had filed a petition for
a declaration that the marriage was
null & void because the respondent
was a person of the male sex
- Omrod J – There are 4 criteria for
assessing the sexual condition of an
individual:-
1. Chromosomal factors
2. Gonadal factors
3. Genital factors
4. Psychological factors
- His Lordship concluded that the
marriage was void as the respondent
wasn’t a woman for the purposes of
marriage but was a biological male
and had been so since birth
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VOIDABLE – S.70
(a) Non-consummation due to the Either the P/R may be the 1 who is
incapacity of either party incapacitated to consummate the
(no sexual intercourse) marriage
The incapacity to consummate must be
in relation to the other spouse
If a party is unable to consummate the
marriage because of his/her incapacity
but is well capable of having sexual
relations with others he/she will be
taken to be incapacitated vis-à-vis
his/her spouse
- D v A (1845)
- The meaning of consummation
Sexual intercourse is ordinary &
complete intercourse; it doesn’t
mean partial & imperfect
intercourse
Baxter v Baxter [1948]
- The use of contraceptives didn’t
prevent the consummation of the
marriage
L v L [1956]
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D. BARS TO RELIEF
S.71: The court shall not grant a decree of nullity on any of the grounds mentioned in S.70
if the R satisfies the court of 2 things;
(a) That the P, with knowledge that it’s open to him to have the marriage avoided So
conducted himself in relation to the R lead the R reasonably to believe that he
wouldn’t seek to do so
(b) That it would be unjust to the R to grant the decree
Cases:-
1. G v M (1885)
2. W v W [1952]
S.73: If a court found that the petitioner’s case has been proved a decree of nullity
will be pronounced