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I've learned about void marriage in cases of unconsummated marriages.

Is it possible to turn a divorce into a void marriage in Scotland?

If this divorce was changed to an annulment, that'd mean the marriage was never valid; therefore, would the male spouse be entitled to get his money back?

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  • question updated, was unaware of the purpose of this stackexchange.
    – Nickotine
    Commented May 11 at 15:35
  • There are really two questions here: can a divorce can be retroactively changed to a voiding of the marriage? And if this is done, does this affect the pre-marital contract agreed by the parties? The answer may be "yes" to the first and "no" to the second; in particular, the definition of a valid marriage per the government may be different than the definition per the Islamic clergy. Commented May 14 at 11:51
  • so it is possible to change my divorce to a void marriage in retrospectively in theory? and would this then have the same end date or a new one?
    – Nickotine
    Commented Jun 3 at 16:27
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    @Nickotine: See ohwilleke's answer. The court decided that the marriage existed (was not void). This was necessary in order to divorce. Also, you seem to miss what it means to void a marriage, when you ask about the end date. A voided marriage has neither a begin nor an end date. Note also that it is not up to the partners to decide whether the marriage was void.
    – MSalters
    Commented Jun 4 at 8:14
  • If this is an "islamic document", then it is quite possible that "marriage" and "divorce" in this document are not declared in the legal sense, but in the sense of Islamic religion. It is just a contract. So a legal annulment might not be helful to the man, or it might not even be needed.
    – gnasher729
    Commented Jun 4 at 15:19

3 Answers 3

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If divorce proceedings are ongoing, then I believe that it is possible to apply for declarator of nullity in the midst of them. This is called a cross-action, not to be confused with the brand of toothbrush. One can also have two spouses both applying for divorce on different grounds. The court would ultimately have to decide which version of those, if either, could be granted. (A consequence of this possibility is that it reduces the opportunities for subsequent challenge: if one could have done something earlier, but didn't, then it's tough to convince a later court that it should intervene now.)

As to raising an action for nullity at a later date, I'm not aware that this exact question has arisen before. Certainly a couple who are already divorced cannot be divorced again from the same marriage, because something which has ended can't be ended a second time (Bridges v Bridges [1910] SLR 203). Equally, one cannot divorce a dead partner. A declarator of nullity, as the second event, is different from this because it is at least adding the twist of trying to say that the marriage never existed to begin with, and there might be some legal consequence flowing from that finding. There is also a res iudicata concern in that the couple has already averred they had a true marriage, and can't change their mind about that now. But it might be that in the right circumstances, a court could allow such an application to proceed. However, as I shall explain, even if this were possible (I don't know), it may not make a difference to the financial settlement between the parties.

Those arrangements consequent on a divorce work in just the same way if the procedure was for declarator of nullity. The same factors are taken into account. The same reckoning is made of assets. Antenuptial agreements can be relevant in either case. While the question posits that an agreement was written so as to make a difference between divorce and nullity, it's not a straight line argument from there to saying that the division of assets should actually be different - and still less that a division already reached should be changed. That's because there are a lot of other contributing considerations to reaching a fair division, and terms in an agreement can be varied if the court thinks they're unreasonable.

Also, once the court has come up with what it considers to be a fair settlement, it will take something significant to disturb that finding. We're looking for something more along the lines of "the husband had millions of pounds in a secret account" than "the known circumstances could have given rise to a different course of legal argument". That said, there are several procedures for changing even a "final" order; some of these are as follows.

  • Within 14 days, one can appeal. This would be on a point of law where it is alleged that the original court made a mistake. Simply being unhappy with its decision is not enough. The appellate court will be reluctant to disagree with the first-instance court about its findings of fact, regarding things like the overall financial position and past dependence of the parties, even if the higher-court judges might have ruled differently on the day.
  • An order for financial provision can be varied if there has been a material change of circumstances. Some merely technical variations (e.g. for bank account details) are simpler. This is different from wanting to change it on a point of principle, where the underlying circumstances are the same, but they weren't fully argued the first time around.
  • All else failing, there is a possibility for applying for "reduction of a consistorial decree" in the Court of Session. That's an overly fancy way of saying "make changes to a court order concerning marriage". This is only possible under tight conditions. It must be in the interests of substantial justice and there must be some exceptional justifying circumstance. That has included instances where a lower court made a complete procedural mess of things, or where one party's legal counsel was profoundly incompetent. As with an appeal, it's not enough to be dissatisfied with the original result, or to have wished one had made better arguments. It can happen years after the original decree. But such actions are very rare.

If a subsequent action for nullity is possible, then any resulting orders would face the same hurdles, because they would amount to undoing the work of the court before.

There are also some problems with the specific claim in the question.

  1. As a first technicality, the relevant condition is not non-consummation, but permanent incurable inability to have sexual intercourse. This must have been present at the time of the marriage, as opposed to developing subsequently. Historically this legal condition was usually called "impotence" and applied only to the male partner, but these days it can in principle work for a female (and, though this isn't part of the question, it's only available for opposite-sex couples). It is not the same as simply not wanting to have sex. Actions for declarator of nullity on this ground are rare, partly because it is difficult to prove all the requisite conditions - bringing in expert medical testimony is definitely a step up in complexity from a "typical" divorce or separation situation.

  2. Secondly, a unique aspect of nullity in this instance is the marriage is voidable rather than void. All other cases of void marriage are for things like non-consent or incest, and what they mean is that the "marriage" never existed, because some essential element was not fulfilled. But "voidable" means only that the marriage can be declared void, not that it is intrinsically void; it can continue if the partners are content with it. Some couples do not mind a lack of sexual activity. A court does nothing wrong in law if it pronounces decree of divorce for a voidable marriage: it's answering the question that's been put, rather than a different question that might have been put. This limits the grounds for challenging its decision. (Indeed, Syed v Ahmed [2005] CSIH 72 demonstrates that a divorce for an unmarried couple can stand, because the court's failure to appreciate that the couple were not married was a simple mistake of fact, rather than an error of law. A marriage that is merely voidable is much more real than that one.)

So somebody in this position would have to persuade a court, probably against the objections of the former spouse, that:

  1. They have jurisdiction to entertain the action at all,
  2. Declarator should be granted on the grounds of impotence (which is hard to prove, or at least expensive),
  3. Notwithstanding the previous orders made in divorce proceedings, it is appropriate to approach the question of financial settlement with fresh eyes - equivalent to the criteria that would be used when deciding whether to hear an action for reduction,
  4. The antenuptial agreement distinguishes between divorce and nullity, and that it would be equitable to enforce it in those exacting terms,
  5. With the agreement factored in, the appropriate settlement is such-and-such,
  6. Assuming that is different from the previous settlement, it would be just in all the circumstances for one spouse to repay the other.

These seem fairly daunting.

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  • I don't cate about the financial aspect, just to get this divorce turned to void for the other reasons I stated. However from your answer it seems it is going to be too much of a hassle and has a low chance of working out, thank you.
    – Nickotine
    Commented Jun 7 at 11:07
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Annulment and divorce are inconsistent theories. To grant a divorce, a court must make a judicial determination that a valid marriage existed, while an annulment is a declaration that a marriage never happened. So, one can't be converted to the other.

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    Does the court really make that determination positively, or is this just the default presumption if there's a valid marriage certificate and no one has argued otherwise?
    – Barmar
    Commented Jun 4 at 20:59
  • @Barmar One of the back door ways to get to an annulment, which I have used in real life in family court litigation, is for the court to start make that determination positively (which it generally does as a standard finding of fact since the date the marriage is formed is relevant to divorce remedies) and to reveal the court the evidence showing a lack of a legal marriage and have the court dismiss the divorce case with prejudice after making the finding of fact that there is no marriage.
    – ohwilleke
    Commented Jun 4 at 21:21
  • I was thinking of something like determining that one of the spouses was not mentally fit at the time of the marriage. Is the court going to go to the effort to find this out, if no one brings the possibility to their attention?
    – Barmar
    Commented Jun 4 at 21:24
  • @Barmar The parties have to affirmatively state that there was a valid marriage under oath in a divorce petition and in a divorce co-petition or response, respectively. If this isn't true, it shouldn't be stated under oath in the pleadings by the parties. In Colorado, under In re Sorenson, 166 P.3d 254 (Colo. App. 2007), either party or their counsel can and really should seek to have a guardian ad litem appointed to represent a party whose capacity may be in doubt to assure the enforceability of a divorce order or separation agreement. casetext.com/case/in-re-marriage-of-sorenson-3
    – ohwilleke
    Commented Jun 4 at 22:08
  • I think the whole point of the question is that they didn't realize or understand the conditions that made it an invalid marriage until after the divorce was finalized. I.e. they made a mistake and would now like to correct that.
    – Barmar
    Commented Jun 5 at 14:42
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A law firm in Glasgow says:

There is no concept of marriage annulment in Scotland. The Court can declare your marriage to be void however and this effectively annuls the marriage. A void marriage is one that never existed. You must always have the Court declare the marriage to be void before you remarry.

In very unusual circumstances it can be argued that even where you have gone through a legal marriage ceremony your marriage is void. Where one party is mentally ill and did not know what he or she was doing the court will hold that there was no consent to marry and that the marriage was void. In this case, the ill party will have had no capacity to marry.

A more intriguing possibility arises where the parties are drunk when marrying. If you wished to persuade a court you did not give your consent to a marriage you would have to also convince the court you were so drunk that you had no idea of what you were doing. This ploy would not work on the basis that you had four or five gins before the ceremony for courage!

Similarly, but very unusually, forcing someone to marry you may result in a void marriage. There have been no reported cases of a forced marriage in Scotland.

Finally, sham marriages are not recognised in Scotland. In one case the parties, who were devout Catholics, married in a registry office in order that one party could gain entry to the country. The marriage was one of convenience and a sham; the parties did not consummate the marriage or live together afterwards. The court held that in cases such as this no marriage had taken place.

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    Declaring a marriage to be void is an annulment, even if the term is not used.
    – Mary
    Commented May 12 at 1:09
  • the question is whether a divorce can be changed to void?
    – Nickotine
    Commented May 14 at 3:19

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