H.R.+Hahlo


 * A. Historical and Comparative**

· Notion of marital nullity arose out of middle ages when the church was unwilling to grant a divorce, but willing to recognize a remedy for marriages which had never been validly formed.

· Distinction between **dirimentary** and **prohibitive** impediments to marriage o **Dirimentary** (//impedimenta dirimentia//, example: prior valid marriage): cannot be overcome, and if parties proceed in the face of such obstacles, no valid marriage can exist. § Divides into two realms: physical or psychological defect and impediments imposed to inhibit sinful marriages (bigamy, incest) § In the first realm, the marriage was only annulled by suit of an injured party, whereas in the second the suit could be advanced by any party. o **Prohibitive** (//impedimentia prohibitiva//, example: parental consent for minors to marry): if the obstacles are overcome, and a marriage performed/contracted, an unassailable union results.

· Whereas the common law concerned itself with the distinction between void and voidable, the civil law speaks of relative and absolute nullity.

· While the remedies of nullity and divorce are not meant to deal with the same situation, they have proved complimentary (easy to divorce = little recourse to nullity, and reverse)

· Despite frequent non-use, nullity has remained an available recourse in many places. There is generally movement to bring the effects of each into relative harmony. (for example, in UK the end of a voidable marriage is no longer retroactive).

· The Hague convention on the Celebration and Recognition of Validly Enacted Marriages accepts that marriages entered into within the scope of local legal traditions should be recognized as valid everywhere. Though there are exceptions – states may still refuse to recognize locally valid polygamous marraiges.


 * B. Constitutional Aspects**

· Though the distribution of powers over marriage are such that nullity is the domain of the federal government, the provinces do have power to legislate it through rules and regulations regarding the solemnization of marriage.


 * C. Grounds of Nullity**

· Example grounds: Identity of Sex; a prior existing marriage; relationship with prohibited degrees; failure to comply w sacred formalities; insanity at time of marriage; lack of consent; impotence.

· Some requirements relate to form, others substance; some are absolute, some relative.

· Whether a marriage is valid or invalid is a mixed question of law and fact. Though the courts generally find that marriages should not be lightly set aside.

· In fact, there is a presumption of validity. Consequences follow: o The onus of proving defect falls to the party alleging it. o<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> The doing of something prohibited by statue does not render a marriage void unless the statute expressly states such a result. ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;">

__1. Identity of Sex__ ·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Discussion of the limits, dealings, judicial acrobats around the issues of sex of the parties and marriage. When is a post-op trans*person considered to be of their post-op sex and when not?

·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Acknowledges that the distinction between void and voidable can be confusing and unhelpful.
 * D. Effects of Nullity**

·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Suggests a third category of unions which “fall so short of valid marriage that they cannot even be void.” For example: same-sex marriage. Though the distinction may seem academic, there may be ramifications when there are statutory remedies available to the parties in nullity that are not extended to “non-marriage”.

·<span style="font-family: "Times New Roman"; font-size-adjust: none; font-size: 7pt; font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> Interesting suggestion that perhaps void is not as absolute a categoriy as it suggest. Would any court in the world annul a marriage contracted when one party was insane, but sustained for forty years through that party’s regaining of their sanity?