Readers often ask whether they can nullify their marriage. The question usually relates to parties separated shortly after they got married and never consummated the marriage.

The frequency with which these questions are asked suggests that a myth needs to be dispelled regarding the circumstances under which a marriage may be nullified. The answers can be found in the Marriage Act and the Matrimonial Causes Act.

A decree of nullity may only be sought in respect of void marriages. According to section four of the Marriage Act, the grounds on which a marriage may be pronounced to be void are as follows:

1. One of the parties committed bigamy in that he/she had a wife/husband living at the time of the marriage.

2. One of the parties did not validly consent to the marriage because:

(i) the consent was obtained by fraud or duress

(ii) one party was mistaken as to the identity of the other person or as to the nature of the ceremony performed

(iii) one party was mentally incapable of understanding the nature and effect of the marriage ceremony at the time it was being performed.

3. The parties to the marriage were, at the time of the marriage, of the same sex.

4. The marriage is void under the provisions of the Marriage Act or other laws relating to marriage in Jamaica. Under the Marriage Act, the marriage will be void if:

(i) one of the parties knowingly and wilfully acquiesced in the solemnisation of a marriage ceremony by or before a person who was not a marriage officer or without two witnesses being present.

(ii) one of the parties to the marriage is under 16 years of age.

(iii) the parties to the marriage are blood or other relations whom the English law prohibits to marry, for example a brother and sister.

Decree of dissolution

Based on the provisions of the Marriage and Matrimonial Causes Acts, if none of those four grounds can be proven, the marriage may only be dissolved by way of a decree of dissolution of marriage (commonly referred to as a divorce), which will only be granted if the parties have been married for at least two years, separated for at least one year and the marriage has broken down irretrievably. It is always advisable to attend counselling before filing the petition because the court is obliged to consider whether reconciliation is possible.

In some cases, the court will allow a party to a marriage to file a Petition for Dissolution of Marriage before the marriage is two years old. In such a case, an application must be filed to seek the court's permission to do so and an approved marriage counsellor must certify that the parties attempted reconciliation but there are special circumstances which justify the hearing of the petition.

There is no time limit with respect to an application for a decree of nullity, so that petition may be filed at any time after the grounds for pronouncing the marriage void have been ascertained.

Sherry-Ann McGregor is a partner and mediator in the law firm of Nunes, Scholefield, DeLeon & Co. Send feedback and comments to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.