Mcgregor

An overseas reader recently raised a question regarding bigamy. She said that a Jamaican couple, H and W, got married and live in New York. At the time of the marriage, H was still married to someone else but went ahead with the marriage to W. H later dissolved the first marriage. H and W are now separated. W has since entered into a new marriage.

W wants to know whether her more recent marriage is valid, since she had not taken any steps to dissolve her first marriage to H.

Apply for a decree of nullity

According to section four of the Matrimonial Causes Act, a decree of nullity of marriage may be pronounced if one of the parties to the marriage had a wife or husband living at the time of the marriage. In other words, if it is proven that either party to a marriage commits bigamy, the court will declare the marriage void.

Section four (three) of the act goes on to make it clear that once a marriage is void, there is nothing which can make it valid. Could this therefore be construed to mean that no court action needs to be commenced in order to declare that such a marriage is void? It could be argued that, because the marriage is already void by operation of law, there is no further step which a party needs to take in order to have that fact pronounced.

Sham marriage vs void marriage

One writer criticised the concept of a 'void marriage' as being a contradiction in terms, because it is possible to argue that a void marriage is really no marriage at all. The parties might have gone through a ceremony of marriage but, because one party was disqualified because of a lawful impediment, they never really acquired the status of husband and wife.

The answer appears to lie in the distinction between a void marriage and a 'non-marriage'. On the one hand, the non-marriage would be a sham or a farce, e.g. a marriage ceremony represented during a play on stage. The void marriage, on the other hand, would possess all the ingredients of a proper marriage, but some legal defect would affect its validity.

Due to the fact that a void marriage is the product of a properly performed ceremony, it is the writer's view that an application ought to be made for a decree of nullity for the court to declare the marriage void. The advantages of applying for a decree of nullity are that the records can be appropriately adjusted to reflect that the first marriage was void and the petitioner can seek orders for maintenance, custody and division of property on the same application. Ultimately, it creates certainty and avoids complications which are likely to arise if one party chooses to remarry.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.