H. Void and Voidable Marriages

Author:Julien D. Payne - Marilyn A. Payne

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Ver nota 42

Marriages may be valid, void, or voidable according to law. A void marriage is one that is null and void from its inception. It is regarded as though it had never taken place. A voidable marriage, on the other hand, is treated in law as a valid and subsisting marriage unless and until it is annulled by a court of competent jurisdiction.43A voidable marriage can only be annulled on the petition of one of the spouses and the annulment must occur during the lifetime of both spouses.44Third parties cannot seek to annul a voidable marriage entered into by other people. The parties to a voidable marriage may elect to treat it as valid. A voidable marriage can only be terminated by the judgment of a court of competent jurisdiction at the request of one of the parties to that marriage. A void marriage, however, is impeachable by third parties who "have an interest of some kind; for the object of the suit must be to procure the marriage to be voided on the ground that its validity may affect some right, or interest of the party promoting the suit."45A "slight interest" will suffice.46A void marriage may also be impugned collaterally after

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the death of one or both spouses.47Where the marriage is void, either party is entitled to institute nullity proceedings and a decree may be granted to the party under the disability.48If the marriage is voidable, only the party under the disability may be barred from securing an annulment of the marriage.49

The doctrine of insincerity may bar the annulment of a voidable marriage but is, in principle, inapplicable to a void marriage.50

[42] For a detailed analysis of the differing consequences of void and voidable marriages, including their effect on marriage settlements, separation agreements, gifts, intestate succession rights, the revocation of wills, dependants’ maintenance claims against the estate of a deceased person, changes of name, the legitimacy of children, support and property rights, tax consequences, and the like, see HR Hahlo, Nullity of Marriage in Canada (Toronto: Butterworths, 1979) at 41-57.

[43] Meunier v Meunier, 1997 CanLII 3551 (BCSC) (void marriage); Davison v Sweeney, 2005 BCSC 757; De Reneville v De Reneville, [1948] P 100 at 110 (CA) (voidable marriage).

[44] A v B (1868), 1 P&D 559; Cowell v Prince (1866), LR 1 Ex 246; Brown v Brown (1907), 13 BCR 73 (SC); Fleming v Fleming, [1934] OR 588 (HCJ).

[45] Sherwood v Ray (1837), 12 ER 848, Parke B.


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