Undoing the Marriage: The Resort to Annulment

Abstract

Rebecca Probert shows how the law of nullity, which was meant to act prospectively to prevent certain types of marriages, also illuminates what happened after marriage. Three levels of lawlessness are identified. The initial lawlessness of the parties in failing to comply with the legal requirements led to the retroactive invalidating of the marriage, making the entire relationship between the parties lawless and their children illegitimate. A third level of lawlessness lay in the strategic use of the law as a substitute for divorce, which was only allowed in a very limited range of circumstances. Invalidating the marriage on technical defects, sometimes many years after the ceremony, ended the obligation to live together and conferred a freedom to remarry that the law did not otherwise allow.