Nullity of marriage in Cameroon, also called an annulment of marriage, is a court declaration that a marriage was never legally valid. Unlike a divorce, which ends a valid marriage, an annulment states that because of a legal defect present from the beginning, the marriage never existed in the eyes of the law. Grounds for annulment can include issues like one party already being married, being underage, or being forced into the marriage through duress.
REGULATORY FRAMEWORK ON THE ANNULMENT OF A MARRIAGE IN CAMEROON
- Regulatory framework under the common law jurisdiction of Cameroon
- Matrimonial Causes Act 1973
- Law No. 2006/015 of 29 December 2006 as amended and supplemented by Law No. 2011/027 of 14 December 2011 on Judicial Organization
- Family Procedure Rules, 2010
- Matrimonial and Family Proceedings Act 1984
- Supreme Court Civil Procedure Rules CAP 211 LFN
- Divorce, Dissolution and Separation Act 2020
- Regulatory Framework under the Civil Law Jurisdiction of Cameroon
- The Civil Code
- Law No. 2006/015 of 29 December 2006 as amended and supplemented by Law No. 2011/027 of 14 December 2011 on Judicial Organization
CONCEPT OF NULLITY OF MARRIAGE UNDER THE COMMON LAW JURISDICTION OF CAMEROON
An annulment of marriage in the common law jurisdiction of Cameroon is a process by which a party to a statutory marriage seeks to completely nullify such marriage based on the fact that the marriage is void in accordance with the provisions of the Matrimonial Cause Act of 1973, as read alongside Law No. 2006/015 of 29 December 2006 as amended and supplemented by Law No. 2011/027 of 14 December 2011 on Judicial Organization and the Family Procedure Rules, 2010. For nullity of marriage to be successful before the competent court in Cameroon, the elements which render a marriage void or voidable must be clearly established.
What is a Void and Voidable Marriage in Cameroon?
As per the case of De Reneville v De Reneville (1948) AII ER 56 by Lord Green and Mbonu v Mbonu (1976) I FNR 57, it was clearly stated that “a void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never haven taken place and can be so treated by both parties to it without the necessity of any Decree annulling it;
A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a Decree annulling it has been pronounced by a court of competent jurisdiction”
Hence a void marriage is one that is invalid ab initio. From its inception, it never existed due to certain existing circumstances or failure to adhere to certain requirements and principles in accordance with the law.
CONCEPT OF NULLITY OF MARRIAGE UNDER THE CIVIL LAW JURISDICTION OF CAMEROON
Article 180 of the Cameroon Civil Code is to the effect that “A marriage contracted without the free consent of both spouses, or of one of them, can only be challenged by the spouses, or by the one whose consent was not freely given.
When there has been a mistake regarding the identity of the person, the marriage can only be challenged by the spouse who was misled.
In the case of the preceding article 180 of the Cameroon Civil Code, the application for annulment is no longer admissible, whenever there has been continuous cohabitation for six months since the spouse acquired full freedom or the error was acknowledged by him.
According to Article 183 of the Cameroon Civil Code, a marriage contracted without the consent of the father and mother, ascendants, or family council, in cases where such consent was required, can only be challenged by those whose consent was required, or by the spouse who needed that consent.
An action for annulment can no longer be brought by either the spouses or the parents whose consent was required, whenever the marriage has been expressly approved by those whose consent was necessary, or when a year has passed without any claim from them, since the person has reached the age competent to consent to marriage themselves.
However, a marriage contracted by spouses who were not yet of the required age, or of whom one of the two had not yet reached that age, can no longer be challenged:
- When six months have passed since that spouse or spouses reached the competent age; and
- When the woman who was not of that age conceived before the expiry of six months.
The father, mother, ascendants and family who consented to the marriage contracted in the case of the preceding article 185 of the civil code, are not entitled to request its annulment.
In all cases where, in accordance with Article 184, an action for annulment may be brought by all those who have an interest in it, it may not be brought by collateral relatives, or by children born of another marriage, during the lifetime of both spouses, but only when they have a present and actual interest in it.
The spouse to whose detriment a second marriage has been contracted may request its annulment, even during the lifetime of the spouse who was engaged to him. If the new spouses contest the validity of the first marriage, the validity or invalidity of that marriage must be determined beforehand.
The public prosecutor, in all cases to which Article 184 applies, and under the modifications set forth in Article 185, may and must request the annulment of the marriage, while both spouses are still alive, and have them ordered to separate.
Any marriage that has not been contracted publicly, and that has not been celebrated before the competent public officer, may be challenged by the spouses themselves, by the father and mother, by the ascendants, and by all those who have a vested and present interest in it, as well as by the public prosecutor.
If the marriage was not preceded by the required publication, or if the dispensations permitted by law were not obtained, or if the prescribed intervals between the publications and celebrations were not observed, the public prosecutor shall impose a fine not exceeding 300 francs on the public official and a fine proportionate to their wealth on the contracting parties, or those under whose authority they acted.
GROUNDS UPON WHICH A PETITION FOR DECREE OF NULLITY OF VOID MARRIAGE CAN BE FILED
As per section 11 of the Matrimonial Cause Act 1973, the grounds upon which a marriage shall be declared void are as follows;
- Existing Lawful Marriage: In accordance with section 11(b) of the Matrimonial Causes Act of 1973, a marriage is declared void when at the time of the marriage either party was already lawfully married.
- Prohibited Degrees of Relationship: This equally referred to as the prohibited degrees of consanguinity (related by blood) or affinity (related by marriage). This involves forbidden relationships such as;
1. For Men: prohibited degrees of consanguinity and affinity include: his ancestress, descendant, sister, maternal and paternal aunt, niece, mother-in-law, wife’s son’s daughter, wife’s daughter’s daughter, father’s wife, grandfather’s wife, son’s wife etc.
2. For Women: prohibited degrees of consanguinity and affinity include: her ancestor, descendant, brother, maternal and paternal uncle, nephew, father-in-law, husband’s son, husband’s daughter’s son, mother’s husband, son’s daughter’s husband etc.
- Either party is under marriageable age: As per section 11(a) (ii) of the matrimonial causes act of 1973, the parties to the marriage who are under the age of 16 years is void. In line with the Cameroon Penal code as read alongside the Civil Status Registration Ordinance 1981, the minimum marriageable age is 15 for girls and 18 for boys, though such marriage must be subject to the consent of both parties and equally recognized by an official document.
- Invalidity by the Lex Loci Celebrations (Law of the place of celebration): A marriage is regarded as void where the parties fail to comply with the form prescribed by the law of the place where it is contracted as regards the solemnization of marriage in conformity with section 11(a) (iii).
- Lack of Consent: A Marriage is declared void where either of the party to the marriage gave their consent to the marriage under the following circumstances;
1. Duress or Fraud
2. Mistaken Identity of the other party
3. Party was incapable of understanding the nature of the marriage
GROUNDS UPON WHICH A PETITION FOR DECREE OF NULLITY OF VOIDABLE MARRIAGE CAN BE FILED
A voidable marriage is valid and only becomes void at the instance of one of the parties to the marriage. A voidable marriage is valid for all intents and purposes in the eyes of the law (having complied with the prescribed form and also is not contracted under any void ab initio ground), till a party to the marriage decides to render same void. Hence it is a marriage which is at the mercy of the parties thereof.
In line with section 12 of the Matrimonial Causes Act of 1973, a marriage shall be voidable under the following circumstances;
- Incapacity of a party to the marriage to consummate same: Where a party to the marriage is incapable to consummate same, the marriage will be voidable at the instance of the party capable of consummating the marriage.
Does sterility amount to incapacity to consummate a marriage?
According the decision of the House of Lords in Baxter v Baxter (1948) A.C.274, sterility or failure to procreate does not amount to incapacity to consummate the marriage.
Does the use of contraceptives prevent to consummation of a marriage?
The House of Lords again answered in the negative in the Baxter v Baxter (1948) A.C.274. Incapacity to consummate a marriage must be ascertained and then it must be proved at the time of hearing of the petition as being incurable, and the respondent refuses to submit for medical examination to determine if it is curable or refuses to submit to proper treatment if the incapacity is curable.
- That a party to the marriage was suffering from unsoundness of mind: Though the party to the marriage could be capable of giving a valid consent, it is established that the party was suffering either continuously or intermittently from mental disorder to such an extent as to unfit for marriage in line with section 12 (A) (d) of the Matrimonial Causes Act of 1973.
- That at the time of the marriage, the respondent was suffering from a venereal disease: This venereal disease must be in a communicable form (Transmissible in nature). The disease must have existed at the time of the marriage. This can be proven through medical evidence.
- That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise.
- That at the time of the marriage the respondent was pregnant by some other person other than the petitioner: A petitioner can only file under this ground if he was ignorant of the fact of the pregnancy at the time of the marriage.
PROCEDURE FOR A NULLIFICATION OF MARRIAGE IN CAMEROON
Duty of the Family Solicitor
- The family solicitor will engage an interview with the intended petitioner,
- The family solicitor will engage an attempt to reconcile procedure after the client’s briefing,
- The family solicitor will ascertain whether there exist any children in the marriage to be annulled and the ages of the children,
- The family solicitor will ascertain the property regime of the marriage to be annulled and whether there exist any property in the marriage,
- The family solicitor should ascertain aspects of jurisdiction of the court to hear the annulment petition.
Upon the successful appraisal of the above aspects, the family solicitor is to request for the following documents;
1. The marriage certificate
2. The birth certificate of the children if any
3. Any document as prove of existence of a property in the marriage
4. A certificate of residence
The family solicitor will produce the following documents to be filed before the competent High Court;
1. A petition for a decree of nullification of marriage
2. A supporting affidavit on oath attesting to the facts contained in the petition.
The documents will be served on the respondent within the prescribed timeframe established by law in order to ensure that the principle of fair hearing is respected.
CASE OF DEATH OF EITHER PARTY TO THE MARRIAGE
While an interested party can file a petition for a decree of nullity of a void marriage upon the death of either party, such cannot be the case in a voidable marriage.