Nullity of marriage
Nullity of marriage is a declaration by a court that your supposed marriage is null and void, and that no valid marriage exists between you and your partner. In other words, it is a declaration that the supposed marriage never happened.
Nullity (or annulment) is not the same as divorce. Divorce is a declaration ending a valid marriage. Nullity is a declaration that a valid marriage never existed.
It is important to be aware that a church annulment does not have any legal effect. It does not mean that you may legally remarry - although it may mean that you can remarry in the eyes of the church.
In nullity law, there are two types of marriages that may be annulled or cancelled. There are void marriages and there are voidable marriages.
If your marriage is void, it is regarded as never having taken place. Technically, if your marriage never took place, then there is no need to go to court to obtain a decree of annulment - you may simply act as though the marriage never happened. However, it is advisable to obtain a court order declaring that your marriage is annulled in order to remove any doubt.
If your marriage is voidable, it is considered to be a valid marriage until a decree of annulment is made.
A decree of annulment can only be made if one of the parties to the marriage applies to the court for a nullity. If the court decides that your marriage is voidable, it will then declare that your marriage was invalid from the start. Your marriage never happened.
You can find out about the implications of a decree of nullity in our document on the consequences of civil annulment of your marriage.
To prove to the court that your marriage is void you must show one of the following grounds:
- At the time of the marriage ceremony there was a lack of capacity. In
other words, you or your spouse was incapable of entering into a binding
contract. This may happen:
- where one of you was already validly married or in a civil partnership or
- where you were too closely related to each other or
- for a marriage ceremony that took place before 16 November 2015, where you were of the same biological sex
- The formal requirements for a marriage ceremony were not followed. For example, you did not give due notice to the Registrar of Marriages.
- At the time of the marriage, there was a lack of consent. In other words, you or your spouse did not give free and fully informed consent to the marriage. This may be due to duress, (i.e., you were forced into the marriage), mistake, misrepresentation or fraud. It may also be due to the fact that you or your spouse was suffering from a mental illness or was intoxicated at the time of the marriage.
To prove to the court that your marriage is voidable, you must show one of the following grounds:
- At the time of the marriage ceremony, either party was impotent. You must show that either you or your spouse was unable to consummate the marriage. You cannot obtain a declaration of nullity because one of you is infertile or because one of you is simply refusing to consummate the marriage. It must be the case that one of you is incapable of sexual intercourse.
- At the time of the marriage ceremony, either party was incapable of entering into and sustaining a proper or normal marriage relationship. This may be due to a psychiatric illness or personality disorder. It may also be due to the sexual orientation of one of the parties.
How to apply
Legal advice and representation is always advisable. You and your spouse should not use the same solicitor.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.
If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees. You are advised to obtain some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.
Further information on applying is available on the Courts Service website.