The Gazette 1978

GAZETTE

DECEMBER 1978

that at the time of its celebration that second marriage would be invalid. But the authorities are in conflict on the question of the retrospective effect of the subsequent decree on the validity of the second marriage. The Irish cases P. v P. (by amendment M. McD. v. P.) [ 1916] 2 I.R. 400 and Mason v Mason [ 1944] N.I. 134) hold that the second marriage is invalidated by the subsequent decree, thus for example preventing prosecution of the parties for bigamy. The English case of Wiggins v Wiggins ([ 1958] 2 All E.R. 555), Australian and New Zealand cases, and the weight of academic opinion (see e.g. J. Jackson "The Formation and Annulment of Marriage", 2nd ed. 1969, p.93) support the contrary view. Unfortunately the proposals in the A.-G.'s Discussion Document are ambiguous on this matter. (Indeed, it is a major omission in the Document that it does not discuss in any detail the many other problems, e.g. concerning property rights, caused by the principle of the retro- activity of nullity decrees). The following proposals are made in the Document which are relevant to the issue: (1) The distinction between void and voidable marriages should be abolished. If invalidity arises it should render the marriage void. (Para. 21); (2) New legislation should apply to all marriages, not merely to those entered into after the passing of the Act. (Para. 26); (3) A decree of annulment or a declaration of annulment should be required before a marriage would be treated as null and void. (Para. 28); The first two proposals combined suggest that a second marriage contracted before a decree might be retrospectively validated by the decree, even though the second marriage may have been celebrated before the passing of a reforming Act. This is implied in the proposal that all invalid marriages should be void. However, the third proposal would attach to so-called void marriages a feature which under existing law is the central characteristic of a voidable marriage, i.e. the need for a decree before the marriage can be treated as void. This leaves open the possibility of the Wiggins v Wiggins approach, which would not allow the retrospective validation of the second marriage. This reading of the proposals is confirmed by the wording of the draft Bill which, in S.2(l), states that every marriage shall "for all purposes" be treated as being valid until a decree is granted. It is clearly undesirable that this issue be left unresolved in the new nullity legislation. Would there then be any objections to a rule which would ensure the retrospective validation of a second marriage by virtue of a subsequent civil decree? Such a rule would certainly have the advantage of encouraging those who have already married a second time after a Church annulment to regularise the second marriage. However, in the long term such a rule might promote the continuation of speculative marriages, i.e. second marriages within the Church entered into in the hope of later obtaining a civil decree. The effect of any change in the law should surely be to encourage couples to ensure the civil validity of a second marriage before, not after, they celebrate it. In short, they should obtain a civil annulment before going through a second ceremony, and a rule which allows a civil decree retrospectively to validate a second marriage does not encourage this.

The problem here is a very delicate one for the legislature. There is on the one hand the natural desire to opt for a rule which will regularise existing second marriages, and on the other hand there is the danger of encouraging continued disrespect for the civil rules concerning capacity to marry. One possible compromise solution would bo to allow a civil decree to give retrospective validity to second marriages contracted before the passing of the reforming Act, but not marriages contracted thereafter. Response Number Four: The Legal Protection of Relationships Not Based On Marriage Changes in the civil law of nullity cannot be guaranteed to regularise all second marriages contracted after Church annulments. Indeed it may well turn out that very few Church-annulled marriages will also be annulled civilly. Apart from the inhibiting factor of cost, and the necessary differences that will continue to exist in the substantive and procedural requirements of the Church tribunals and civil courts, a party to a second marriage may not appreciate the importance of obtaining a civil annulment of his first marriage until some crisis occurs in the second marriage (e.g. the death or desertion of one party) which makes essential a determination of its legal validity. In these circumstances if the legislature wishes to provide protection for the parties to the second marriage, it may have to consider the enactment of laws to regulate relationships which are not based on formal marriage, i.e. laws conferring greater rights and duties on cohabitees and their children. The increase in the incidence of cohabitation arising from causes (mentioned above) other than the Church/State conflict is a further factor suggesting the need for a re-appraisal of this branch of the law. Recent family legislation in this country has deliberately refrained from extending to co-habitees rights and duties which are given to married couples. The protection afforded to abused spouses and their children by the barring order introduced by s.22 of the Main- tenance of Spouses and Children's Act, 1976, ("Family Law Act 1976") does not extend to co-habitees nor to their children. The wide range of rights given to spouses by the Family Home Protection Act, 1976, does not extend to co- habitees. The Succession Act, 1965, affords a surviving co- habitee no rights of intestate succession to the estate of the deceased co-habitee, no legalright to a shareofhis/her estate where a will exists, and noright to apply for provision out of his/her estate. The considerable improvements in the maintenance rights of both spouses introduced by the Family Law Act, 1976, were not extended to co-habitees. Some social welfare allowances and benefits are only available on proof of marriage, e.g. deserted wife's and widow's allowances and benefits, though in this context a cohabitee may be entitled within some other classification, e.g. single mother's allowance. It is of significance that the trend in a number of other countries has been in the other direction towards increased protection of co-habitees. The recent English Court of Appeal decision in Davis v Johnson [1976] 2 W.L.R. 182, gave publicity to the provision of the Dom-

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