Marriage and divorce

Marriage and divorce

A marriage which takes place after 30 June 1972 is voidable if either party suffers from a mental disorder within the meaning of the Mental Health Ordinance (Cap. 136) of such a kind or to such extent to be unfit for marriage, whether continuously or intermittently: Matrimonial Causes Ordinance (Cap. 179), section 20(2)(d). 

Either party may file a petition for nullity in court, requesting that the marriage be declared null and void. A petition for nullity based on this ground can only be brought within 3 years of the marriage. 

The effect of such petition for nullity is that the marriage is null from the day of Decree Absolute, not void from the date of marriage. In other words, the marriage is treated as valid up until the court formally ends it, rather than being considered never to have existed.

A petition for nullity of marriage on the grounds of the respondent’s insanity (i.e. the respondent was of unsound mind or suffering from mental disorder of such a kind or extent to be unfit for marriage and procreation of children) cannot proceed without the leave of the court. The court, which decides whether to grant leave or not, may make it a condition for granting leave that some proper person be appointed as the respondent’s guardian ad litem (i.e. a representative appointed to protect the respondent’s interests in the proceedings): Matrimonial Causes Rules (Cap. 179A), rule 107. 

If a MIP wishes to get divorced, he cannot petition for divorce by himself. He must act through a next friend and follow the rules set out in rule 105 of the Matrimonial Causes Rules (Cap. 179A) and Order 80 of the Rules of the District Court (Cap. 336H). The next friend must act through a solicitor. 

Similarly, if a spouse wishes to divorce an MIP, the MIP can only accept service of the divorce petition and other relevant court documents through a guardian ad litem, and observe the rules set out in rule 106 of the Matrimonial Causes Rules (Cap. 179A) and Order 80 of the Rules of the District Court (Cap. 336H). The guardian ad litem must act through a solicitor.