Null And Void: Is It Time To Update Grounds For Annulment?

• Published date: 19 March 2021
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Hall Brown
• Author: Ms Izzy Walsh

Over the course of the last year, much of what had previously passed for our normal lives at work and at home seems to have been put on hold.

Despite all that delay and postponement, however, one development with the potential to impact households across England and Wales is still scheduled to take place later this year.

The Divorce, Dissolution and Separation Act - which introduced the concept of 'no-fault' divorce - successfully completed its passage through parliament last June and may come into force in the autumn.

It means that couples will no longer have to apportion blame for the breakdown of a marriage and, therefore, may be able to divide their assets and go their separate ways with less animosity than allegations of bad behaviour can sometimes create.

The last truly major piece of divorce law reform before the Act took its place on the Statute Book, had been almost half a century before.

There have, of course, been significant changes in society since that piece of legislation - the Matrimonial Causes Act - became law.

I was reminded of one shift in recent days upon reading of a case in which a husband attempted to have his marriage annulled on the grounds that it hadn't actually been consummated.

Mr Justice Moor described the petition brought by businessman Husayn Kassai as very rare (https://www.dailymail.co.uk/news/article-9266661/Businessman-claimed-wife-refused-sex-drops-bid-nullify-marriage.html).

Just how unusual it is can be seen by glancing at the latest set of figures published by the Office for National Statistics (ONS) (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/
divorcesinenglandandwales/2019).

Back in 1973, when the Matrimonial Causes Act came into force, there were 760 annulments. In 2019, there was a total of 297 - a drop of 61 per cent in 46 years.

I should point out that marriages can be annulled for a variety of reasons, not only because it wasn't consummated but because it wasn't properly consented to, that one of the spouses had a sexually-transmitted disease or that the wife was pregnant by someone other than her husband at the time that they exchanged vows.

The lawyer acting for Mr Kassai's wife not only contested the claim that the couple hadn't had sex but said that the fact that a non-consummation clause still existed was evidence of how divorce law remained patriarchal and ripe for reform.

Although I agree that a review of whether the provision should remain is...