1. Nullity

2. INTRODUCTIOn
The essential ingredients for validity of marriage can be ascertained by looking at the law of nullity.
A decree of nullity may be sought to establish that the formalities for marriage has not been complied with.
Nullity is one of the modes by which the institution of marriage is set aside allowing the parties to marry other people.
A marriage will often be annulled due to some disqualification of one or both parties of the parties. Nullity unlike divorce that is normally prompted by the behaviour of one or both parties, wipes out the marriage due to some sort of obstacle.

3. Nullity: Void or Voidable marriages
Nullity of a marriage may be either on grounds of void or voidability. A marriage may be made voidable under the MCA 2007 for marriages entered into after that date or under the MCA 1973 of England. A marriage may be made void under the MCA 1973, the marriage act of Zambia cap 50, s32 and 33 which applies to marriages celebrated after 1949 or for marriages commenced after 2007 under the MCA act of Zambia.
The latter connotes that the marriage never existed whilst the former does not deny the existence of the marriage but connotes that a factor exists on which the parties may nullify the marriage i.e. depending on a decree of the court to render it void.

4. Difference between void and voidable marriages
The main distinction thus falls in the reality that the court will regard a voidable marriage as existing but one that is void as never having existed that is there was no marriage from scratch.
Lord Greene in the case of De Reneville v De Reneville distinguishes between a void and voidable marriage, he states:
‘A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it, a voidable marriage is one that will be regarded by every court as a valid and subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction’.

5. Importance of the distinction between void and voidable marriages
This distinction is important because:
In the case of a void marriage a decree of nullity is merely declaratory and necessary for the purpose of dispelling doubts or enabling the court to exercise its power to grant ancillary relief see s27(2) nothing in the provisions is to be taken to validate any marriage where a decree of nullity has not been obtained, which by law is considered void. In the case of a voidable marriage s16 of the 1973 act provides that a nullity decree operates as to annul the marriage only as respects any time after the decree has been made absolute, thus the marriage is treated to exist until the decree is made absolute
Where a marriage is considered void no questions as to voidability arise see:
HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.)
The case establishes that where the particulars of the claim fall under grounds making a marriage void abinitio as in this case being that the parties where within the prohibited degrees of kindred there is no need to consider any grounds making the marriage voidable as the marriage never existed. In this case the parties having identified that they fell within the prohibited degrees of kindred tried to annul their marriage on grounds of non consummation stating that the reasons for not consummating was that they discovered that they were blood cousins subsequent to the marriage. Having proved that they were blood cousins the court held that the marriage was null and void ab initio.

6. Distinguishing between void and voidable marriage
Never existed
Unnecessary (but possible) to obtain a decree of nullity
No bars
Can be pronounced void even after the death of the parties
Voidable
Valid until annulled by the court see s33(1) of the MCA
Necessary to obtain a degree of nullity
Decree of nullity may be barred
Must be annulled during the lifetime of the parties

7. Void Marriages
Under the MCA2007, the following are grounds on which a marriage will be void
Marriage is not valid under the MA due to the fact that (a) parties are within the prohibited degrees of consanguinity or affinity (b) Either parties is under 16 (unless there is consent from the judge in accordance with s32) (c) Marriage is not solemnised in accordance with s32(2) (person officiating the marriage is not licensed, place is not licensed, parties marry under false names or there is no registrar’s certificate or special license)
Either person is lawfully married to some other person at the time of the marriage (be it customary or statutory) see also s32 (1) of the MA
Parties are of the same sex

8. Prohibited degrees of consanguinity and affinity:
Grounds on which a marriage is deemed void: prohibited degrees of kindred
Prohibited degrees of consanguinity and affinity:
Consanguinity relates to blood relations whilst affinity relates to relations created by marriage.
Cases:
HAFIZ AYYUB DURGA v NAJMUNNISSA ISMAIL (1992) S.J. (H.C.): the court held that a marriage between two blood cousins is void and there was therefore no need to obtain a decree of nullity on grounds of failure to consummate.

9. Prohibited degrees of kindred
Why would the law prohibit these categories of relations?
Prevention of inherited genetic disorders
Prevention of exploitation of children by relatives
Consider the two categories listed in the act. Why is it prohibited for a man to marry a woman who has been his wife’s grand- mother? Why is it prohibited for a man to marry a woman who has been his step daughter whom he has never raised and was an adult at the time of the marriage?

10. Void Marriages: party below 16
Here it is important to distinguish with the need for parties below the age of 21 to get parental consent. In England the act expressly provides that failure to obtain parental consent will not render the marriage void. The Zambian marriage act does not expressly provide this.
See Muyamwa v Muyamwa: in this case the court stated that the requirement to obtain parental consent, is merely a prerequisite to obtaining the registrar’s certificate however this in itself will not render the marriage void as the act does not expressly state so. Consider s 32 (2)(c) does not invalidate the marriage however the law in

11. Void marriage: either party is already married
Where a person is married either under the MA or customary law and decides to marry under the MA, this amounts to bigamy and is a criminal offence. Further the second marriage is considered void ab initio. The marriage remains void even if the first wife subsequently dies, provided she was alive at the time of the marriage
See s32(1) b
CASES:
THE PEOPLE V CHITAMBALA (1969) ZR 142 HC
THE PEOPLE V KATONGO (1974) Z.R. 290 (H.C.)
THE PEOPLE v PAUL NKHOMA (1978) Z.R. 4 (H.C.)

12. Void marriage: parties of the same sex
Is the term ‘sex’ wide enough to cover transsexuals. The medical term for transsexualism is gender identity dysphoria
The ECHR in the Rees case [1987] 2 F.L.R. Stated ‘transsexuals are generally people who: ‘whilst belonging physically to one sex, feel convinced that they belong to the other; they often seek to achieve a more integrated, unambiguous identity by undergoing medical treatment and surgical operations to adapt their physical characteristics to their psychological nature.’
Read:
Corbett v Corbett: this case held that for all purposes sex means the biological make up of a person i.e. Tested by chromosomal and genital factors. This does not change. Thus notwithstanding that a person had undergone any sex change or lived their life as though being one of the sex they were not, the genitalia and chromosomes they were born with will determine their sex for the purposes.

13. Void marriages: effects of the decree
The decree is merely declaratory, it does not affect the fact that the marriage never existed from scratch see s27(2).

14. Voidable marriges
S29 MCA, the following are grounds on which a marriage is declared voidable:
The marriage has not been consummated due to the incapacity of either party to consummate it.
The marriage has not been consummated due to the wilful refusal of the respondent to consummate it;
Either party to the marriage did not validly consent to it whether in consequence of duress, mistake, unsoundness of mind or otherwise
At the time of the marriage either party, though capable of giving a valid consent was suffering whether continuously or intermittently from a medical disorder within the meaning of the mental disorders act of such a kind or to such an extent as to be unfitted for marriage
At the time of the marriage the respondent was suffering from a sexually transmitted disease in a communicable form
At the time of the marriage the respondent was pregnant by someone other than the petitioner.

15. Voidable: non consumation
A marriage can be rendered voidable on the ground that
29(a) the marriage has not been consummated due to the incapacity of either parties
29(b) the marriage has not been consummated due to the wilful refusal of one of the parties to consummate it.
The question that arises is how does the law define consummation?

16. Defining consummation
Consummation is defined as the first act of intercourse between the parties. Consummation can only be done by the penetration of the vagina by the penis (Corbett v Corbett) There need only be one act of consummation and this must be done subsequently to the marriage between the respective husband and wife to that particular marriage. This was stated in the case of D-e v A-q.
Dr Lushington in the case of D-E v A-G (1845)stated that intercourse must be ordinary and complete and not partial and imperfect. There must be an erection and penetration for a reasonable length of time.
It matters not that the man is incapable of ejaculation as long as there is penetration and he is able to keep an erection for a reasonable period after that.

17. Defining consummation: cases
Clarke v Clarke ALL ER p540: case dealt with the aspect of consummation (this ground was relied on by the husband who sought for a decree of nullity). The court analysed the evidence provided by both the respondent and the petitioner, the latter of which claimed that although they had a child together which was a fact not disputed by both, there had been no consummation and the child was born ‘fecundation ab extra’ i.e. disposition of semen on vagina area but without having penetration which was identified by the medical personnel. The court thus equated consummation with penetration. Medical evidence was concluded by the court to indicate that the wife at all times suffered from medical conditions (frigidity) which made penetration impossible. On this account there had been no consummation be it before or after giving birth to the child (it was further stated by medical opinion that such condition could persist even after labour, the court thus found this to have continued).
Baxter v Baxter ALL ER: the court in this case analysed the aspect of wilful refusal to consummate the marriage. The court held that the refusal to consummate by one party save where the other wore a protective sheath did not amount to non-consummation. Reasonable steps must be taken by one party where there is a refusal to persuade the other to consummate the marriage ,or else such a refusal would not amount to wilful refusal. The court basically concluded that in enacting this provision parliament was not concerned with the matters of such an intimate nature and that the word had to be understood in its common usage and in the light of social conditions known to exist. Thus the refusal to have sexual intercourse save were a protective sheath was worn did not amount to wilful refusal.

18. Defining consummation cases
W v W (1967) the court held that a husband who could only sustain an erection only for a short period was incapable of consummating his marriage.

19. Corbett v Corbett
Nullity - Incapacity of wife - Wife registered as male at birth - Wife later undergoing sex-change operation - Provision of artificial vagina - Whether wife a woman for purposes of marriage - Whether wife capable of consummating marriage.
Nullity - Declaration - Marriage void - Wife a man - Power of court to make bare declaratory order - RSC Ord 15.
In September 1963 the parties went through a ceremony of marriage. At that time the petitioner knew that the respondent had been registered at birth as of the male sex and had in 1960 undergone a sex-change operation consisting in removal of the testicles and most of the scrotum and the formation of an artificial vagina in front of the anus, and had since then lived as a woman. In December 1963 (the parties having been together for no more than 14 days since the ceremony of marriage), the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex, or alternatively for a decree of nullity on the ground of non-consummation. The respondent, by her answer, asked decree of nullity on the ground of either the petitioner's incapacity or his wilful refusal to consummate the marriage; and, by an amendment made during the trial, pleaded that the petitioner was estoped from alleging that the marriage was void and of no effect or, alternatively, that in the exercise of its discretionary jurisdiction to make declaratory orders under RSC Ord 15, the court, in all the circumstances of the case, ought to refuse to grant to the petitioner the declaration prayed for in the prayer to the petition. On the medical criteria for assessing the sexual condition of an individual, the trial judge found that the respondent had been shown to be of male chromosomal sex, of male gnadal sex, of male genital sex and psychologically to be a transsexual.
Held-(i) Marriage being essentially a relationship between man and woman, the validity of the marriage depended on whether the respondent was or was not a woman and, the respondent being a biological male from birth, the so-called marriage was void (see p 49 a, post).
(ii) With regard to non-consummation (assuming the marriage to be valid), the respondent was physically incapable of consummating a marriage as intercourse using the completely artificially constructed cavity could never constitute true intercourse (see p 49 h, post).

20. The incapacity is not curable
29(a) the marriage has not been consummated due to the incapacity of either parties
It must be shown that the marriage has not been consummated due to the incapacity of either parties. It must further be shown that:
The incapacity is not curable
The respondent refuses to submit to such medical examination as the court considers necessary for the purposes of determining whether the incapacity is curable or
The respondent refuses to submit to proper treatment for the purpose of curing the incapacity.

21. Failure to consummate due to an incapacity
The failure to consummate may be due to either physical or psychological factors, for instance in the case of D v D the wife proved to the satisfaction of the court that at the time of the marriage and ever since she was unable to consummate her marriage due to invincible repugnance to the act with her husband.
If the failure to consummate is due to some medical defects which may be cured by an operation that is not dangerous and the party refuses to undergo the operation there is a wilful refusal. If however the operation is dangerous then that will not amount to a wilful refusal.

22. The nature of the incpacity
It matters not that the incapacity is suffered by the respondent or by the petitioner. The incapacity may be due to psychological reasons or physical ones. Invincible repugnance to the act of sexual intercourse with the other has been held to amount to incapacity. However the courts are likely to require some element of psychiatric or physical aversion
In Singh v Singh: failure to consummate a marriage that a 17 year old sikh girl was forced into, to a man she had never met was held to fall short of incapacity.

23. Wilful refusal to consumate the marriage
Lord Jowit LC in Horton v Horton stated ‘Wilful refusal to consummate’ requires a ‘settled and definite decision not to consummate come to without lawful excuse and the whole history of the marriage must be considered.

24. Wilful refusal cases
If there has been no opportunity to consummate the marriage then it will be hard to show that there has been a wilful refusal unless one party has shown ‘unswerving determination’ not to consummate the marriage. Ford v Ford: in this case a couple got married whilst the husband was in prison, prior to him being sent to prison they had a sexual relationship. After he was released he refused to have intercourse. It was held that the marriage in prison was not a wilful refusal but his clear determination never to do so was sufficient.
In Horton v Horton: couple married during the war failed to consummate the marriage at first and were separated. It was held that this did not a amount to a wiful refusal which must be an unjustified, settled and definite decision and taking into account the whole history of the marriage.
‘Wilful refusal’ may also occur where the parties have agreed only to have intercourse under certain circumstances (e.g after a religious ceremony). In such a case then a refusal by one party to abide by the condition may constitute ‘wilful refusal’. For example, in Kaur v Singh 166 a couple agreed they would be legally married and then undergo a religious ceremony, and only after that would the marriage be consummated. The couple were legally married but the man then refused to undergo the religious ceremony, although he was willing to consummate the marriage. The wife was unwilling to consummate the marriage until the religious ceremony was performed. She applied for and was granted a nullity decree on the basis of wilful refusal to consummate.
Refusal to take the appropriate treatment to cure an incapacity to consummate will also amount to wilful refusal.

25. Wilful refusal
It has been stated that the husband must take appropriate tact, persuasion and encouragement and his wife will not be guilty if he has failed to do so. The wilful refusal of the respondent must be proved before a decree will be granted on this ground.

26. Voidable: lack of consent
Either party to the marriage did not validly consent to it whether in consequence of duress, mistake, unsoundness of mind or otherwise:
Duress: where a party to the marriage enters the same due to fear or threats of which in the absence of this they would not have entered the marriage, the marriage will be voidable. The fear may be due to a number of different causes and need not be imposed by the other party to the marriage.
Buckland v Buckland: here the court held that a man who was threatened into marrying a 15 year old girl he had defiled was entitled to a decree of nullity as he was told that if he married her he would not go to prison.
See also Szechter v Szechter [1971] p 286: court granted a decree of nullity to parties who married to escape the harsh degrading conditions of prison. The test it was stated is ‘it must be proved that the will of one of the parties has been overborne by genuine and reasonably held fear caused by threat to immediate danger to life, limb or liberty so that the constraints destroys the reality of consent to ordinary wedlock.’
The above test has however been criticised as in most case the individual does make a conscious choice in the fear of the alternative, thus the court will strike a balance between the public policy in upholding the marriage and the need to do justice to the individual. Factors such as the individuals capacity to escape the persuasion as well as the alternative to not entering into the marriage contract will be considered. The courts thus look at subjective factors

27. Lack of consent: mistake
The law does not recognise mistakes as to attributes but will recognise mistakes as to identity where this prevents the individual from marrying the person they intended to marry.
C v C [1945] NZLR 356: in this case a woman married a man in the belief that he was a well known boxer called Miller. The court held that the marriage was not invalidated by his attributes as she married the person she had wanted to marry.
The law will also recognise a mistake as to the nature of the ceremony, that is the person did not believe that what was taking place was a marriage.
Valier v Valier: here the court granted a decree, an Italian man was taken to the registrars office and a marriage was conducted. He could not understand English and did not know what was going on.
It has been held that a misunderstanding as to a marriage being polygamous, the chastity of the woman or another's fortune are not sufficient to hold the marriage voidable.

28. Lack of consent Bars
That the petitioner knowing that there were grounds for nullity conducted themselves in relation to the respondent to lead them to believe that the petitioner will not obtain a decree of nullity and it would be unjust for the respondent to grant the decree.
The proceedings where not instituted within 3 years of the marriage.

29. Voidable: suffering from a mental disorder
At the time of the marriage either party, though capable of giving a valid consent was suffering whether continuously or intermittently from a medical disorder within the meaning of the mental disorders act of such a kind or to such an extent as to be unfitted for marriage
Bars
That the petitioner knowing that there were grounds for nullity conducted themselves in relation to the respondent to lead them to believe that the petitioner will not obtain a decree of nullity and it would be unjust for the respondent to grant the decree.
The proceedings where not instituted within 3 years of the marriage.

30. The proceedings where not instituted within 3 years of the marriage.
Voidable suffering from sexually transmitted disease/ respondent pregnant
At the time of the marriage the respondent was suffering from a sexually transmitted disease in a communicable form
At the time of the marriage the respondent was pregnant by someone other than the petitioner.
Bars
That the petitioner knowing that there were grounds for nullity conducted themselves in relation to the respondent to lead them to believe that the petitioner will not obtain a decree of nullity and it would be unjust for the respondent to grant the decree.
The proceedings where not instituted within 3 years of the marriage.

31. Bars to a decree: voidable
Save for the ground on non consummation a decree of nullity will not be granted on the other grounds listed under s29 i.e. C-f where the petition is filed 3 years after the date of marriage
Where it is shown that the petitioner was not ignorant of the facts alleged under s29 e and f a petition for nullity will not be granted

32. Effects of a decree of nullity
Voidable marriages
S33(1) from the date of decree absolute the marriage will be considered as not subsisting and the parties will be free to marry other people.
Note that the previous law that stated that a decree of nullity had retrospective effect has been abolished as it caused confusion.
Void marriages:
The marriage never existed, parties are free to marry even prior to obtaining a decree of nullity