Nullity of marriage

A decree of nullity is a declaration by a court that your marriage never existed in the eyes of the law. It means that no valid marriage exists between you and your partner. Nullity is more commonly referred to as an annulment.

Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid marriage never existed.

There are two types of marriages that may be annulled:

• Void marriages
• Voidable marriages

If your marriage is void, it is regarded as never having taken place.

If your marriage is voidable, it is considered to be a valid marriage until a decree of annulment is made. Once the decree is granted, your marriage is also regarded as never having taken place.

A decree of annulment can only be made if one of the parties of the marriage applies to the court for a decree of nullity. If the court decides that your marriage is voidable, it will then declare that your marriage was invalid from the start. Your marriage never happened.

To get an annulment (nullity) of your alleged marriage, you must make an application to the Circuit Court or the High Court.

Void marriage

The court can grant an annulment for a number of reasons, including:

• Lack of capacity
• Lack of consent
• Formal requirements for marriage not followed

Lack of capacity

At the time of the marriage ceremony there was a lack of capacity. In other words, you or your spouse was incapable of entering into a binding contract of marriage. This may happen:

Lack of consent

At the time of the marriage, there was a lack of consent. In other words, you or your spouse did not give free and fully informed consent to the marriage. This may be due to duress, for example, you were forced into the marriage, mistake, misrepresentation or fraud. It may also be due to the fact that you or your spouse was suffering from a mental illness or was intoxicated at the time of the marriage.

If the court decides that your marriage is void for any of these reasons, it will make a declaration that your marriage never existed.

Formal requirements for marriage not followed

The formal requirements for a marriage ceremony were not followed. For example, you did not give at least 3 months’ notice to the civil registrar of your intention to marry.

If the court decides that your marriage is void for any of these reasons, it will make a declaration that your marriage never existed.

Voidable marriage

A court can decide that your marriage is voidable, if you prove:

• Impotence
• One of you was incapable of entering into a marriage

Impotence

At the time of the marriage ceremony, one of you was impotent and therefore unable to consummate the marriage. Impotence is the inability to have sexual intercourse. You cannot obtain a declaration of nullity because one of you is infertile or because one of you is refusing to consummate the marriage. It must be the case that one of you is incapable of sexual intercourse.

Incapable of entering into a marriage

At the time of the marriage ceremony, one of you was incapable of entering into and sustaining a proper or normal marriage relationship. This may be due to a psychiatric illness or personality disorder. It may also be due to the sexual orientation of one of you

If the court decides that your marriage is voidable for any of these reasons, it will then declare that your marriage was invalid from the start. The marriage is annulled.

Whether your marriage is void or voidable, the legal consequences of a civil annulment of your marriage are the same. Your marriage is declared to be invalid from the start. Therefore, your marriage never legally happened.

If you have already remarried, that is, you have married before an order of annulment was actually made by the court, your new marriage may have appeared invalid and bigamous. However, once the annulment order is granted, your new marriage is validated, as your first marriage has now been declared invalid.

If your marriage is annulled, you lose the rights that you had as a married person. Therefore:

• The home that you shared with your former spouse is not a family home. If your former partner is the legal owner of the house, they can sell or lease it without you agreeing to it.
• Under the Succession Act 1965, when a married person dies, their spouse is legally entitled to a share of their estate whether or not they have left a will. As your marriage never happened, you do not have any succession rights as a spouse if your former partner dies.
• Once your marriage has been annulled, you do not have a right to apply as a spouse or former spouse to the court to order your former partner to pay maintenance to support you. However, if there were children born during the annulled marriage, you may apply to the court to order your former partner to pay maintenance.
• If your marriage is annulled, it will also have consequences for your children. However, the Status of Children Act 1987 protects the legal rights of children whose parents are not married to each other. Under the Succession Act 1965, if you die and do not provide for your child adequately in your will, that child may apply to the court for a share of your estate. If you die without a will, your children have an automatic right to a share in your estate. These rights apply equally to children born outside of marriage and children born within marriage, so an annulment of your marriage will not affect your children's succession rights.
• The right of a father to be a guardian of his child may be affected by an annulment of marriage. Normally, when a child is born to married parents, both parents are the joint guardians of the child. The father will continue to be regarded as a joint guardian in a nullity if it is a voidable marriage, where the decree of nullity is granted:
  • after the birth of the child, or
  • in the 10 months before the birth of the child

A court can also make orders in relation to the unfitness (or unsuitability) of one the former partners to have custody in respect of any dependent child.

You can apply to the court to determine any question relating to ownership or possession of property or assets following a decree of nullity. The court can then make orders to divide or sell disputed property or assets.

A church annulment has no legal standing. If you remarry within a church, the law will not recognise your new marriage unless a decree (order) of divorce or an order of nullity was granted in respect of your legal marriage.

Further information on nullity and the forms used to apply is available on the Courts Service website.

Legal advice and representation is always advisable. You and your spouse should not use the same solicitor.

To enquire whether you are eligible for Legal Aid, you can contact your nearest law centre.

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation. A limited number of FLAC phone clinic appointments are offered in conjunction with Citizen Information Services around the country. These appointments are with a volunteer lawyer and are confidential and free of charge. Contact your nearest Citizens Information Centre for information on FLAC phone clinic appointments in your area. FLAC’s Information and Referral Line for basic legal information is open Monday to Friday from 9.30am-1pm.

If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to obtain some quotes before deciding on a legal firm. Contact information for solicitors throughout Ireland is available on the Law Society website.