Estate Duty surviving spouse exemption: meaning of parties to a marriage
This phrase has its normal meaning and the test should be applied at the time of the settlement was created. The fact that the parties to the marriage were later divorced does not of itself prevent the exemption from applying on the survivor’s death, nor does the fact that the survivor may have remarried. The exemption is still available where a voidable marriage has been annulled, but if the marriage was void, the exemption cannot apply.
A void marriage (i.e. one that is automatically void) is one that will be regarded by every Court in any case in which the existence of the marriage is in issue, as never having taken place, and can be so treated by both parties to it without the necessity of any decree annulling it. A void marriage may be put at issue at any time, even if both parties are dead. Examples of void mariages are polygamous marriages, marriages involving mistaken identity, marriages induced by threat or duress, under-age marriages, marriages involving a lunatic, and a marriages involving related persons within the prohibited degrees.
A voidable marriage is one that will be regarded by every Court as a valid subsisting marriage until the Divorce Court, which alone is competent, annuls it. It is therefore a valid marriage until annulled. A voidable marriage is unimpeachable once either of the parties to it have died. Grounds for annulment will include non-consummation, cruelty, adultery and desertion.