Ken Heffernan, Family Law and Divorce Solicitor, is experienced in dealing with these nullity issues and can apply the legal requirements set out below to your particular case to advise appropriately for your circumstances whether you are in Cork or elsewhere in Ireland.
A marriage can be treated as if it never took place where some defect or impediment existed at the time of the marriage, such as to render the marriage invalid. In these circumstances, a court can grant a decree of nullity. The effect of this order of nullity is that the marriage never existed as far as the State is concerned. This will allow both parties to the nullified marriage to re-marry. A Church annulment does not allow for re-marriage under Irish law and a person who wishes to obtain an order of nullity of marriage must apply to court.
The court may grant an order for nullity on the following grounds:
- Lack of capacity, where the parties were not capable of marrying each other, for example where one party was already married to someone else at the time of the marriage or one party was under the age of eighteen years and did not have court permission,
- Non-observance of certain formalities, where the parties did not comply with a formal requirement relating to the ceremony such as giving the required notice of intention to marry to the Registrar of Marriages,
- Absence of consent, where one of the parties did not give a full, free and informed consent,
- Impotence, where one of the parties is unable to perform the complete sexual act with the other party,
- Inability to form and sustain a normal marital relationship. This might be established where one party, unknown to the other, was suffering from manic depression or schizophrenia at the time of the marriage or where one party suffered from extreme immaturity at the time of the marriage.
When the court grants an order for nullity the legal effect is that:
- the parties are free to marry,
- neither party can claim maintenance as a spouse from the other party,
- neither party can claim a spouse’s legal right share in the estate of the other party upon their death,
- the decree of nullity does not affect the rights of the partie’s dependent children.
It is illegal to be married to more than one person at any time and a person who does so may be prosecuted for bigamy. It is important to note that even if you obtain a divorce order abroad that order may not be recognised by the Irish State and any subsequent remarriage may be invalid. Where a second marriage is not valid, the parties are not treated as being married for the purpose of social welfare payments and they cannot make a claim against the estate of the other and cannot seek maintenance against each other. If an invalid marriage breaks down, the parties do not have the protection that the law gives to spouses.