From around the 10th Century, the notion of marriage as forming part of the seven sacraments became popular in Western thought, based on a positive reception of the views of Augustine, Bishop of Hippo.
In 1439, the council of Florence approved the notion that marriage was part of the seven sacraments of Christianity. Based on this view, the validity of a marriage, in addition to other matters such as consent, came to rest on whether the ceremony had been performed by a Priest, laying the foundation for modern monogamous Christian marriages.
As a consequence of that view of marriage as a sacrament, where marriage was celebrated in facie ecclesiae (in the face of the Church), it was regarded as valid and could only be terminated either by death, annulment due to impediments existing at the time of the marriage, or later on by an Act of Parliament¹. A petition for annulment could only seek either a decree declaring a voidable marriage as void or a declaration of nullity, which was based on a diriment impediment existing at the time of the marriage.
At the Reformation, s. 7 of the Act of 1533 (25 Hen. 8, c. 19), required the submission of the clergy to the laws, statutes and customs of the realm, provided that the Canons ‘which be not repugnant to the law, statutes and customs of this realm nor to the damage or hurt of the King’s prerogative royal, shall now still be used and executed as they were afore the making of this Act,’ pending the decision of the commission set up to examine and codify the Canon law.
The commission’s report never became law and therefore, the pre-Reformation Canon law continued in force, in so far as it could be shown to be repugnant to the law and customs of the realm. The Canon law of England thus became part of the Common law of England to the extent that it was not repugnant to the other customs existing outside it.
Void and Voidable Marriages
After the Reformation, marriages were no longer considered part of the Seven Sacraments of Christianity, and the exclusive jurisdiction of Ecclesiastical Courts was abolished. The Common law incorporated marriage via statute, and while Ecclesiastical Courts still had jurisdiction in determining cases of nullity, the Common law courts developed a doctrine of control over the ecclesiastical courts. This was exercised when a party to the proceeding was either dead or the impediment in question was merely a prohibitive impediment.
An impediment was a legal obstacle existing in Canon law that prevented the sacrament of marriage from being performed either validly or licitly(legally). An impediment could be prohibitive or diriment. While prohibitive impediments merely made the marriage voidable, mostly by throwing into doubt some legal non-compliance, diriment impediments went to the integrity of the marriage itself and its roots.
Where diriment existed, the parties to the marriage were entitled to treat the marriage as void even absent of a judicial pronouncement and where a declaration of nullity was granted, the Common law courts did not exercise any jurisdiction in interfering with such an exercise even if a party to the marriage had died.
The logic of the Common law is that, as the marriage was void ab initio, no decree could lie against but rather, where the court is invited to intervene, the duty of the court becomes to declare that the marriage never existed. However, where the impediment was prohibitive, the marriage was merely voidable until a judicial decree for nullity was obtained.
This led to the creation of ‘civil disabilities’ and ‘canonical disabilities’. A marriage under a civil disability (diriment) was void ab initio, and the parties could treat it as such even without judicial intervention. That further led to the distinction between a void and voidable marriage in Common law.
In De Reneville v De Reneville 1948, Lord Justice Greene stated the distinction at Common law to authoritatively be that, “A void marriage is one that will be regarded by every court as never having taken place, and can be treated by both parties as such, without the necessity of any decree annulling it. A voidable marriage, on the other hand, will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.”
Consent As A Diriment.
As previously discussed above, both Canon law and Common law treated consent as playing a crucial role in the validity of a marriage. In Canon law, which was adopted by English ecclesiastical law, a marriage could be void on the ground that there was no consent at the time of the marriage. Although the marriage could be ratified in certain cases by a consent voluntarily given subsequently, whereupon the consent was deemed to relate to the time of the marriage.
In the case of minors, the ecclesiastical law and Common law treated invalid marriages contracted by males below the age of fourteen years and females below the age of twelve years. This was because such persons were considered minors not capable of assenting to a contract of marriage.
The 1754 Marriage Act by Lord Hardwicke was passed to require that, persons who were above this Common law age to consent, yet below the age of 21 years old, obtain the consent of their parents before they could marry. This made such marriages voidable where no parental consent had been obtained. This statutory intervention was aimed at preventing clandestine marriages by persons who were not minors, being above the age to consent to marry yet not recognized as adults at Common law, not having attained the age of 21 years.
The Common law thus created a distinction between marriages involving persons who did not meet the statutory age to consent to marry (which was void ab initio) and those who qualified to marry but had failed to meet certain statutory requirements such as obtaining parental consent.