Voidable marriages

This article critiques the decision of the Court of Appeal in Re SA (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003. In Re SA the Court of Appeal held that: (1) by operation of section 16 of the Matrimonial Causes Act 1973, a voidable marriage is not void at its inception and is therefore not caught by section 58(5)(a) of the Family Law Act 1986, and (2) the effect of section 16 of the 1973 Act is that a voidable marriage starts off fully valid but only on making a decree absolute of nullity becomes invalid. This article contends that the approach adopted by the Court of Appeal in SA is conceptually challenging, based on a misreading of the statutory language, and is directly contrary to long-established and powerful authorities.