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January 17, 2019

Void and voidable marriages

A void marriage is a marriage which was not legal from the start, and was therefore never recognised in the eyes of the law. Spouses in a void marriage who wish to separate do not need to take any special steps to do so because, legally, they are not married. The Marriage Act 2014 provides that a marriage is the voluntary union of a man and a woman whether in a monogamous or polygamous union and registered in accordance with this Act -Section 3(1).

However the fact that there is a voluntary union is not in itself a guarantee that a legitimate marriage has been solemnised. The Act has gone a notch higher and provide de that a marriage can be ailing for some reasons and it does not meet the statutory requirements that form the ingredients of a marriage.Such a marriage is known as a void marriage. No spousal obligations can be said to flow from such a union.It never was a marriage.

A void marriage is a marriage that is invalid from its very beginning. Such a  marriage is unlawful and requires no formality to terminate. It is simple a vacuum in the eyes of the law.

According to Section11(1) A union is not a marriage if at the time of the making of the union— (a) either party is below the minimum age for marriage. Section  4 stipulates that a person shall not marry unless that person has attained the age of 18 years. As such even if you got a marriage certificate with a child, it will for all intents and purposes be an illegality and nothing can be done to validate such a marriage.

One cannot marry a person who is within the statutory prohibited relationship.Section 10 (1) provides that a person shall not marry— (a)that person's grandparent, parent, child, grandchild, sister, brother, cousin, great aunt, great uncle, aunt, uncle, niece, nephew, great niece or great nephew; (b)the grandparent, parent, child or grandchild of that person's spouse or former spouse; (c) the grandparent, parent, child or grandchild of that person's former spouse; (d)a person whom that person has adopted or by whom that person has been adopted; or (e)any other person where such marriages is prohibited under customary law. (2)For the purposes of this section, a relationship of the half-blood is a bar to marriage. (3)A person who, by this section, is forbidden to marry shall be said to be within a prohibited marriage relationship.

The marriage of a person with that person's cousin does not apply to persons who profess the Islamic faith. Where the parties are within the prohibited marriage relationship. A marriage is also void if either party is incompetent to marry by reason of a subsisting marriage.

 If there is an order made under section 25, the court has directed that the intended marriage is not to be contracted; the consent of either party has not been freely given; either party is absent from the ceremony; both parties knowingly and willfully permit a person who is not authorised to do so to celebrate the union; either party is mistaken about the identity of the other party; or either party knowingly or willfully enters into the marriage for fraudulent purposes.

In situations where the consent to marry is not freely given where the party who purports to give it is influenced by coercion of fraud,is mistaken as to the nature or purport of the, ceremony or the party consenting is suffering from any mental condition whether permanent or temporary, or is intoxicated, or is under the influence of drugs, so as not to appreciate the nature or purport of the ceremony then such a marriage is void.

In a void marriage there may be disputes over property rights and other issues, because the partners are not married and thus rights which would be automatically extended are not available. Marriages that fall within the foregoing set of circumstances are not marriages. However, there is a significant difference between a void marriage, which was never valid, and a voidable marriage, which is valid but may have involved the impairment of one or both parties. Under the Act a marriage is said to be voidable in situations like where after get time married,it turns out that the marriage cannot be consumated. 

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