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.
