What this doctrine provides is that where parties have stayed together for a long time with this deformity or where they have accepted the wilful refusal, then courts will not declare that marriage null and void on the basis that the parties by staying so long together have assumed that deformity and accepted it. Normally this period ranges between 10 and 20 years.

In Harthan v. Harthan (1948) 2 All E.R

The husband sought a declaration of nullity on a claim of his own impotence and claimed that in their 20 years marriage he had been unable to engage in any sexual intercourse and the court declined to grant him the decree citing this doctrine of approbation.

G V. M (1885) 10 A.C. 71

1.                  Where parties are related to one another within the prohibited degrees of affinity and consanguinity.

2.                  Where either spouse is married to another person and that other marriage is still subsisting.

3.                  Where the consent of the parties was obtained through fraud or duress.  In Buckland v. Buckland - the petitioner was seeking nullity was accused of defiling a girl of 15 years and although he was protesting his innocence, he was advised that unless he married the girl he would go to prison. He contracted the marriage and later filed for annulity on the grounds of consent and the court granted him the petition.

4.                  Where a party to a marriage is at the time of contracting that marriage of unsound mind, drunk, insane or suffers from epileptic fits, this will be a ground for nullity of that marriage.  This only affects the marriage if it happens at the time of contracting the marriage.  The grounds ensure that the parties are capable of knowing what they are entering into.

5.                  Mistake – however this will only be a ground in two circumstances only

(a)                where the party relying on mistake proves that he/she was mistaken as to the identity of the other party.  i.e. he/she did not marry the person they intended to marry.  This is usually difficult to prove when the person you are marrying is in front of you and only happens where marriages by proxy or mail order are allowed.  In Singh v. Singh the woman married the man on the mistaken belief that he was a famous boxer.  The man shared a name with the famous boxer and even told her that he had won various championships.  She petitioned for divorce on grounds of mistake but the court held that she had married the man that she intended to marry and was only mistaken as to his qualifications.
(b)               Where a party is mistaken as to the nature of the ceremony and do not appreciate that he/she is contracting a marriage.  This was the case in Kelly v. Kelly, Mehta v. Mehta in Mehta a woman got in into a marriage thinking that she was celebrating becoming a Hindu but she was later to discover that she had gotten married to a potentially polygamous marriage and she petitioned for divorce.

6.                  Where a spouse is suffering from a venereal disease in a communicable form:

7.                  If at the time of contracting the marriage the woman is pregnant by some other person other than her husband.  Poulet Peerage Case  - the wife was three months pregnant at the time of contracting the marriage and the husband gave evidence that he had not had any sexual intercourse with her before the marriage and was granted a petition for nullity on this ground.

Sometimes the issue arises with issue to nullity about what are sham marriages and whether these marriages are null and void.  Sham marriages are those where parties enter into a marriage merely for purposes of representing themselves as married but have no intention of cohabiting.  This are normally conducted for purposes of acquiring citizenship and acquiring jobs or just to legitimise children.  It has been held that such a marriage is perfectly valid provided the parties have freely consented to it.  This was the ruling in Silver v. Silver (1955)  in this particular case a German woman married an English man so that she could be allowed to reside in England.  Upon arrival in England the parties separated and only met twice in a period of 29 years.  After 29 years the wife filed for proceedings to nullify the marriage on the grounds that the marriage was a sham marriage.  The court declined to declare the marriage null and void on the grounds that it was their intention to get married and the reasons were irrelevant.

In such cases the option available in sham marriages is divorce.

VERVAEK V. SMITH (1983) 1 A.C. 45 the marriage was entered into to avoid a wife being deported (she was a prostitute) from England and the court held that the marriage was valid.

Szechter v. Szechter (1971) P. 286  - in this particular one the marriage was declared null and void on the ground that the parties had not consented.  They had entered into the marriage out of fear that the woman would be killed.  This was a marriage which was not really consented to by the parties.

Rosemary Moraa v. Charles Kizito

The woman in this case entered into a marriage for purposes of legitimising a child and cohabited with another man.  It was held that the later marriage was a legal marriage, the one arising out of cohabitation.


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