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83. Section 11(c) is a re-enactment of section 1(c) of the Nullity of Marriage Act 1971 which was passed shortly after the decision in Corbett v Corbett [1971] P 83. Section 11(c) contains one in a series of grounds of nullity. By section 11(b) a marriage is void if "at the time of the marriage either party was already lawfully married". The reference to the situation at the time of the marriage is necessary because a person may have been lawfully married at an earlier time and may be lawfully married at a later time. The situation is one that can change. For purposes of nullity the critical consideration is what the situation was "at the time of the marriage" in question. Similarly, section 11(d) provides that a polygamous marriage entered into outside England and Wales is void if "either party was at the time of the marriage domiciled in England and Wales". Again, when dealing with domicile which can change, Parliament uses the past tense and specifies the time of the marriage. Section 11(c) is different in both respects: a marriage is void if "the parties are not respectively male and female". Both the present tense and the omission of any reference to the time of the marriage indicate that, in relation to the validity of marriage, Parliament regards gender as fixed and immutable.
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