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Family Lawcards Problem Questions

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Problem Question

Jahan and Ben have recently married. Their wedding took place on Saturday 20th June 2009. Very soon after the wedding Jahan found out she was pregnant and in September 2009 had a baby who they named Adam.

After the baby was born Ben and Jahan started to argue regularly. Jahan wanted another child naturally but Ben wanted to adopt. Jahan gave in and in August 2010, they adopted Sam.

Later that year i.e. 2010, Ben started behaving strangely. He stayed out all the time and started staying away for business trips for long periods at a time. When Ben was home he argued with Jahan and in February 2011 he sought to annul the marriage. Both Ben and Jahan are strongly against divorce as it conflicts with their religious beliefs. Jahan is desparate to try and sort the marriage out and does not want the marriage annulled.

Jahan has confronted Ben and accused him of having an affair. He admits this is true but argues he fell out of love with her because he found out Adam, their first child, was not in fact his child. Jahan has confirmed she had a one night stand just before they got married and unfortunately did not use contraceptive but she says she is very sure that Ben was aware that Adam was not his because he was away and the dates did not correspond.

Advise both parties of the grounds for obtaining a decree of nullity and any possible bars.

Answer Key

Relevant facts

• Married May 2009
• Baby Sept 2009
• Adoption 2010
• Jahan cannot get a divorce.
• Jahan does not want to annul
• Ben having an affair
• Ben wants to annul
• Adam is not Ben's child

Relevant Legal issues to address

• Is the marriage void under s11 Matrimonial Causes Act, 1973? A void marriage is one that is void ab initio (right from the beginning). Unlikely on the facts given.
• Is the marriage voidable under s12 Matrimonial Causes Act, 1973? The marriage might be avoidable under s12(f) i.e. that at the time of the marriage the respondent was pregnant by some other person other than the petitioner. (Ben should be advised that he can annul under this section).
• Are there any bars to either bringing such a claim?
  • Approbation by the petitioner s13(1) MCA 1973 - the court will not grant a decree on any ground in s12 if the respondent can prove that the petitioner knew that he or she could have avoided the marriage but whose conduct in relation to the respondent led the respondent to believe that the petitioner would not do so and the court believes that it would be unjust to the respondent to grant the decree.
    
    Ben's behaviour in pushing to adopt, it might be argued, was not the behaviour of someone wanted to annul the marriage and led Jahan to believe that the marriage would continue.
  • Ignorance in relation to the pregnancy - a decree cannot be granted on ground (e), (f) and (h) if it can be proven that the petitioner was aware of those facts at the time of the marriage.
    
    Ben might be barred if it can be proven that he was aware that Adam was not his

Advice

Jahan - can try to bar Ben's attempts to annul on the grounds that firstly, he behaved in such a way as to lead her to believe that the marriage would continue i.e. pushing for adoption. Secondly, she can try to prove that he was aware, when he married her, that Adam was not his child.

Ben - Ben should be advised that he might be able to annul under s12(f) MCA 1973 but attention should be drawn to the potential bars that might hinder his application under s13(1) MCA 1973.