Report No. 59
3.8. Position in England at common law, and Legislation of 19th century.-
At common law, the mental incapacity, due to unsoundness of mind, to consent to marriage, undoubtedly1 made the marriage void ab initio, because "consent is an essential ingredient of a valid marriage. "In Browning v. Renne, (1812) 2 Phil Eccl 69: 161 ER 1080, it was stated2, "want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent."
An Act of 17423, replaced by an Act of 18114, made void the marriage of any person who was found lunatic by inquisition or any one whose person or estate had been committed to the care and custody of trustees under any statute, and the marriage of such a person was void though it might have been solemnized during the lucid period. Thus, as Lord Stowell pointed out5, it was the state of insanity6, and not the affected person's condition of mind at the time of the marriage, which made the marriage void. The scope of the concept of lunacy was expanded in course of time7-this will be explained later8.
Mental incapacity now renders the marriage voidable, and not void in England9.
1. Tolstoy Void and Voidable Marriages, (1964) 27 Modern Law Review, p. 394.
2. Also see Park (in re:), 1954 Probate 89 (96), affirmed 1954 Probate 112: (1953) 2 All ER 1411: 97 Sol Jo 830, approved in Hill v. Hill, (1959) 1 All ER 281 (PC).
3. (1742) 15 Geo 2 Chapter 30.
4. The Marriage of Lunatics Act, 1811.
5. Turner v. Meyers, (1808) 1 Hagg Const 414 (417): 161 ER 600 (Lord Stowell).
6. This aspect is of importance.
7. (a) Section 7(1)(b), Matrimonial Causes Act, 1937;
(b) Section 8(1)(b), Matrimonial Causes Act, 1950;
(c) Section 9(1)(b), Matrimonial Causes Act, 1965;
(d) Section 12, Matrimonial Causes Act, 1973, para. 3.12, infra.
8. Para. 3.9, infra.
9. Para. 3.12, infra.
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