Family Law revision.

Problem question angle Marriage Hyde v Hyde: I conceive that marriage, as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others Union between two individuals

who are not related to each other

.and who have attained adulthood Formal requirements for a valid marriage Preliminaries: 1) Parental consent required if either party is 16 or 17 s.3 Marriage Act 1949 2) Publicising the intention to marry Anglican preliminaries: Calling of Banns Civil preliminaries : Must obtain a superintendent registrars certificate. (Immigration and Asylum Act 199) Ceremony Civil Ceremonies Content Place Marriage Act 1994: Approved premises decided by Local Authority Marriage must be celebrated with open doors Marriage Act 1949: Parties must declare that they are free lawfully to marry Say, I x Take thee y to be my wedded wife/husband

The Church of England No specific words required by statute

Jewish & Quaker weddings

No legal regulation of the ceremony. The states role is limited to requiring that the parties comply with the civil preliminaries and that the marriage is registered.

Marriage in a registered place of religious worship Place Must be held in a place of religious worship Location must be registered for marriage (If not registered a civil ceremony must also be done)

Content Must fulfil statements necessary for a civil ceremony (see above)

Marriage registration All marriages must be registered

Civil partnership Preliminaries Civil only (Civil Partnership (Amendments to Registration Provisions) Order 2005 SI 2000/2005

Ceremony & Place Civil venues Religious organisations that are willing to host civil partnerships: Equality Act 2010 s. 202 No religious content No prescribed words

Registration CPA s. 2(1) two people are to be regarded as having registered as civil partners of each other once each of them has signed the civil partnership document.

Law of nullity Void or voidable? A void marriage/civil partnership never existed it is automatically void. it is not necessary to obtain a decree/order from the court (but it is possible) A voidable marriage existed until the decree/order of the court

However: Either party can apply for financial provision upon the death of the other if the marriage was entered into in good faith and has not been annulled: I(PFD)A s. 25(4) Void Prohibited degrees Blood relatives Step child/Step parent UNLESS both parties are 21 years old or above AND the younger has not been a child of the family in relation to the elder at any time before the child attained the age of 18. Adoption. Adoptive parent+child is prohibited ALSO blood relations are still prohibited

Minimum age Neither party can be under the age of 16

Detective formalities When will a marriage/civil partnership be void for non-compliance with the relevant formalities? Only if the parties knowingly and wilfully fail to comply with the stipulated requirements

Gereis v Yagoub: Got married in an unregistered Greek Orthodox Church. The parties were aware of this. They did not go through with the additional civil ceremony. The wedding was held to be void. Other requirements are directory rather than mandatory. Wont automatically make a marriage void.

What if the parties innocently failed to comply? Cant be void A-M v A-M: If a couple marry outside the forms specified by the Marriage Act 1949, the marriage is to be classified as nonexistent rather than void. Affirmed in Ghandi v Patel: A polygamous Hindu ceremony took place in a restaurant. Held to be void. If close enough to the form specified it will be valid: Gereis v Yagoub

One party already married If one party is already in a formal relationship (marriage/CP) then any marriage/CP after will be void

Same sex A marriage will be void if the parties are not respectively male and female; a civil partnership will be void if the parties are not of the same sex Transsexuals and the law of marriage Gender Recognition Act 2004 Apply for a gender recognition certificate Application will be scrutinised by Gender Recognition Panel Medical evidence confirming gender identity dysphoria Must have lived in the new gender for at least two years and intends to live in it until death Gender Recognition Certificate: the persons gender becomes for all purposes the acquired gender (s. 9) Where there is no gender recognition certificate old law prevails: Corbett v Corbett Biological Essentialism having regard to the essentially heterosexual character of marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.

Polygamous relationships If the marriage was polygamous and contracted overseas while either party was domiciled in the UK then it is void

Voidable marriages Incapacity to consummate S12 Matrimonial Causes Act provides that a marriage will be voidable if it has not been consummated owing to the incapacity of either party to consummate it.

Incapacity to consummate o Derives from canon law

May be due to physical problems or invincible repugnance

Can petition on basis of own incapacity o

Although see Singh v Singh (above) lack of inclination not the same as invincible repugnance Young girl saw arranged marriage husband for the first time at the ceremony and realised she didnt want to marry him

Wilful refusal to consummate

o Introduced as a ground in 1937 o Test: has the respondent come to a settled and definite decision without just excuse?
o May be shown by a refusal to have anything to do with the other person:

o Ford v Ford (1987) 137 NLJ 904: Upon release from prison asked to be taken to his girlfriends house and refused to have anything to do with his wife. o Kaur v Singh [1972] 1 WLR 105: A marriage was arranged between two Sikhs. A civil ceremony took place but the husband refused to make arrangements for a religious ceremony (as was his duty) Marriage was annuled
o Cannot petition on basis of own refusal

What is required?
o One act of ordinary and complete intercourse o

What if a condom is used?: Baxter v Baxter [1948] AC 274

Coitus interruptus: White v White [1948] P 330

What constitutes a natural cavity/organ?

B v B [1955] P 42

Corbett v Corbett: intercourse using an artificial cavity was the reverse ordinary, and in no sense natural

Lack of consent Ability to consent o must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage (In Re Park [1954] P 1)
o which were spelt out in Sheffield City Council v E and S *2004+ EWHC 2808 (Fam): Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each others society, comfort and assistance. [para 132]

Note the increasing willingness of the courts to make preventative orders o

X City Council v MB, NB and MAB (By His Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam)

M v B, A, and S (By her Litigation Friend the Official Solicitor) [2005] EWHC 1681; [2006] 1 FLR 117

Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam); [2006] 1 FLR 867

o Voidable or no marriage at all?: City of Westminster v IC [2008] EWCA Civ 198 Note relationship between capacity to consent to marriage and capacity to consent to sexual relations

X City Council v MB, NB and MAB (By His Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam)

Re SK; A London Borough Council v KS and LU [2008] EWHC 636 (Fam)

Duress

Test is whether ones will was overborne

Competing formulations o

Earlier cases required a genuinely held fear caused by threat of immediate danger to life, limb or liberty (Szechter v Szechter [1971] P 286)

Later cases accepted any threats/pressure that destroyed the reality of consent to marriage (Hirani v Hirani (1983) 4 FLR 232); although cultural expectations are not sufficient (Singh v Singh [1971] P 226)

latter test is now accepted as the appropriate one o o

P v R (Forced Marriage: Annulment: Procedure) [2003] 1 FLR 661

NS v MI [2006] EWHC 1646

Does this strike the right balance?

Preventative orders

Re SK (An Adult by her Litigation Friend) [2004] EWHC 3202 (Fam)

Forced Marriage (Civil Protection) Act 2007

Access to the law

Victims of duress may not know what legal remedies are available or how to access them

Would criminalising the issue help?

Mistake

Must relate to the ceremony or the identity of the person (mistake as to their attributes is not sufficient): - [1945] 2 All ER 690 Pregnancy by a third party

Introduced as a ground in 1937

Applies to both marriages and civil partnerships

Should a wife be able to petition for nullity on the basis that the husband had impregnated another woman at the time of the marriage?

Gender reassignment If applicant is married can only obtain an interim gender recognition certificate
o see R and F v UK (2007) E.H.R.L.R. 193

will be upgraded only if existing marriage is dissolved; marriage is voidable under s. 12(g) (six-month time limit: s. 13(2A)) nb will be able to enter into a civil partnership with the ex-spouse

If respondent marries in reassigned sex o voidable if other spouse did not know: s. 12(h)