Understanding the basic differences between dissolution and nullity of marriage- OLAMIDE MAKO

Under the Matrimonial Causes Act, a marriage can be brought to an end in two (2) ways;

• by dissolution of marriage
• by nullity of marriage

1. DISSOLUTION OF MARRIAGE

For an action of dissolution of marriage to succeed, it must have been a valid marriage ab-initio and it must be based on the grounds provided in section 15 of the Act. By virtue of being a marriage that is valid ab – inintio, both parties in the marriage are at liberty to bring a petition for dissolution of marriage if they can prove any of the conditions set in section 15 of the Act.

Section 15 provides thus;

• A petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be presented to the court by either party to the marriage upon the ground that the marriage has broken down irretrievably.
• The court hearing a petition for a decree of dissolution of marriage shall hold the marriage to have broken down irretrievably if, but only if, the petitioner satisfies the court of one or more of the following fact—
• That the respondent has wilfully and persistently refused to consummate the marriage
• That since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with a respondent
• That since the marriage , the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
• That the respondent has deserted the petitioner for a continuous period of at least one year, immediately preceding the presentation of the petition
• That the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to the a decree being granted
• That the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition
• That the other party to the marriage has for a period of not less than one year failed to comply with a decree or restitution of conjugal rights made under the Act
• That the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable grounds for presuming that he/she is dead.

When any or more of the above stated conditions is met, the court will grant an order for dissolution of marriage.

1. NULLITY OF MARRIAGE

This is the part that is a little bit complex. For a petitioner to bring an action for nullity of marriage, it must either be that the marriage is void or voidable.

Now what is the difference between a void and voidable marriage?

A marriage that is void is invalid ab-initio. Section 3 of the Act provides for what constitutes Void marriages and Prohibited degrees of consanguinity

• Subject to the provisions of this section, a marriage that takes place after the commencement of this Act is void in any of the following cases but not otherwise, that is to say, where-

1. Either of the parties is, at the time of the marriage, lawfully married to some other person:
2. The parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, or affinity:
3. The marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages:
4. The consent of either of the parties is not a real consent because—

• It was obtained by duress or fraud; or
• That party is mistaken as to identify of the other party or as to the nature of the ceremony performed:
• That party is mentally incapable of understanding the nature of the marriage contract:

1. Either of the parties is not of marriageable age.

In view of the above and in the eyes of the law, no marriage ever existed, therefore, when any of the conditions above are present, the proper action to bring is an action for nullity of marriage on the grounds that the marriage never existed, that is to say that the marriage is void. What that means from a legal view is that none of the parties have been married before.

A voidable marriage is marriage that may be valid ab- initio but may become invalid at the instance of a party. Section 5 of the Act provides thus;

• Subject to this Act, a marriage that takes place after the commencement of this Act not being a marriage that is void, shall be voidable in the following cases but not otherwise, that is to say, where at the time of the marriage—

1. Either party to the marriage is incapable of consummation the marriage:
2. Either party to the marriage is—

• Of unsound mind; or
• A mental defective; or
• Subject to recurrent attacks of insanity or epilepsy ;

1. Either party to the marriage is suffering from a venereal disease in a communicable form ;or
2. Wife is pregnant by a person other than husband;

THE DIFFERENCE BETWEEN DISSOLUTION AND NULLITY OF MARRIAGE

I will not dwell on void marriages since under the law; it is incurably invalid and remains so. The difference that will be highlighted will be between the dissolution of marriage and nullity of marriage on the grounds that the marriage is voidable.

1. The major difference between the two is that while any of the parties can bring an action in dissolution of marriage, there are restrictions on who brings an action in nullity of marriage on the grounds that the marriage is voidable. Section 35 of the Act provides that a party suffering from incapacity to consummate the marriage cannot bring an action for nullity, it also provides that a party suffering from the disability of the disease, or a wife who is pregnant by another person other than her husband pursuant to Section 5 (d) cannot bring an action for nullity of marriage on the ground that the marriage is void.
2. While an action for dissolution of marriage can be brought at anytime subject to Section 30 of the Act, an action for nullity must be brought not later than 12 months after the date of the marriage.
3. In an action for dissolution of marriage, it does not matter if the petitioner was aware of the existence or likelihood of the grounds in which he/she is relying on but in an action for nullity on the grounds that the marriage is voidable, if the petitioner was at the time of the marriage aware of the incapacity he/she is relying on, no action will succeed.
4. In dissolution of marriage, the court can explore reconciliation but in nullity of marriage on the grounds that the marriage is voidable especially when the incapacity is incurable the court cannot explore reconciliation.
5. Where a decree for dissolution of marriage becomes absolute, a party to the marriage may marry again as if the marriage had been dissolved by death See Section 33. A decree of nullity of a voidable marriage annuls the marriage from and including the date on which the decree becomes absolute.

There are other difference that could be deduced from the wordings of the Act but the above forms the primary differences which will guide both Lawyers and non-Lawyers in understanding the basic differences between Dissolution of Marriage and Nullity of Marriage.

Olamide Mako