What is the difference between a void and voidable marriage?

In family law, the terms void and voidable refer to two distinct types of marriages that are considered legally invalid under certain circumstances. Understanding the difference is crucial, as it affects the legal status of the marriage and the actions required to dissolve it.

Void Marriage

A void marriage is one that is considered legally invalid from the moment it is contracted. It is as though the marriage never existed in the eyes of the law. Certain conditions automatically render a marriage void, and these include:

• Bigamy: One party is already married to someone else.
• Close Relatives: The marriage occurs between close relatives (e.g., siblings, parent-child).
• Underage Marriage: One or both parties are below the legal age for marriage.
• Lack of Consent: One or both parties did not freely consent to the marriage (e.g., due to coercion or fraud).
• Inability to Marry (e.g., mental incapacity or physical inability to consummate the marriage).

In a void marriage, there is no need for an annulment because the marriage is automatically treated as if it never happened. The marriage is invalid from the beginning, and both parties are free to marry again.

Voidable Marriage

A voidable marriage, on the other hand, is one that is valid until it is legally annulled. In this case, the marriage is considered valid for all legal purposes unless one party takes legal action to have it annulled. The grounds for a voidable marriage typically include:

• Fraud or Misrepresentation: One party was deceived into marriage (e.g., about the other party's intentions or personal circumstances).
• Duress: One party was forced into the marriage under pressure or threat.
• Mental Incapacity: One party was unable to understand the nature of the marriage at the time of the ceremony due to mental illness or intoxication.
• Impotence: One party is unable to consummate the marriage, and this was not disclosed beforehand.
• Underage Marriage (if not legally ratified by a court or consent from parents).

A voidable marriage can be annulled by the party who was affected by the issue, and until annulled, it is treated as valid. If the marriage is annulled, it is as though it never occurred, but this typically requires a formal court process.

Key Differences

• Legal Status:
  • Void marriage: Automatically invalid from the start.
  • Voidable marriage: Initially valid, but can be declared invalid through a legal process (annulment).
• Grounds for Invalidity:
  • Void marriage: Commonly due to bigamy, consanguinity, or legal incapacity to marry.
  • Voidable marriage: Arises from issues like fraud, duress, or one party’s incapacity.
• Action Required:
  • Void marriage: No annulment is required; it is treated as non-existent.
  • Voidable marriage: Requires an annulment petition from one of the parties involved.

Example:

If a person marries someone already married to another person, the marriage is void. It has no legal standing, and the person can immediately marry someone else.

On the other hand, if a person marries under duress (say, due to threats of harm), the marriage is voidable. They can seek annulment through a court, but until that is done, the marriage is considered valid.