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Report No. 59

3.11. Position under Act of 1950, as amended in 1959.-

In England, a marriage could, under the Act of 19501 be avoided (even if originally valid) on the ground that "either party to the marriage2 was, at the time of the marriage, of unsound mind or was then suffering from mental disorder3 within the meaning of the Mental Health Act, 1959, of such a kind or to such an extent as to be unfitted for marriage and the procreation of children or subject to recurrent attacks of insanity or epilepsy." By this provision, a marriage could be annulled even though, at the ceremony, a spouse posed the necessary capacity discussed above.

The phrase "subject to recurrent fits of insanity" (in the English Act of 1973) was contrued4 to mean "subject to an increase of the acuteness or severity of unsoundness of mind 'recurring periodically in its course."5

Thus, a person who, at common law, though of unsound mind, contracted a marriage during the lucid interval (which would have made the marriage valid, unless he were a lunatic so found by inquisition, when the Marriage of Lunatics Act, 1811, would have applied, before its repeal in 1959), is regarded as contracting a voidable marriage under the Act of 1950.

1. Section 8(1)(b), Matrimonial Causes Act, 1950, as amended by the Mental Health Act, 1959, section 149, Schedule VII. Pt. 1.

2. See now the 1973 Act, para. 3.12, infra.

3. As to mental disorders, see para. 3.12A, infra.

4. Section 7(1)(b), 1937 Act, para. 3.9, supra.

5. Section 12, Matrimonial Causes Act, 1973.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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