Capacity To Marry Flashcards
Steinfeld and Keidan v Secretary of State for education [2017]
JUDGEMENT: CA dismissed the appeal of the appellants against an earlier High Court decision refusing them judicial review of the Secretary of State’s decision not - at this stage - to propose any change to the bar on opposite-sex couples entering into a civil partnership
PRINCIPLE: The majority, Lord Justices Beatson and Briggs, in agreement with the decision of the Judge in the High Court, consider that the difference of treatment of same-sex and opposite-sex couples is justified by the Secretary of State’s policy of “wait and evaluate”. While recognising that the focus of the review on the demand by same-sex couples for civil partnerships rather than the position of all couples is open to criticism, Lord Justices Beatson and Briggs consider it proportionate, and therefore lawful, for the Secretary of State to have further time to undertake a proper assessment of the best way forward on what is an important matter of social policy, when a number of options, including the extension of civil partnership to different-sex couples, or its phasing out, fall to be considered.
Lady Justice Arden, dissenting on the justification issue, considers that the potential violation of the appellants’ rights is not justified by the Secretary of State’s current policy of ‘wait and see’, though it is open to the Secretary of State to reformulate her policy. The Secretary of State’s current policy is that she will not propose any change to the Civil Partnerships Act 2004 until she has more statistical data about whether the number of same-sex couples choosing or remaining in civil partnerships rises or falls following the introduction of same-sex marriage. This policy is both open-ended in time and focused solely on the reduction in number of civil partnerships, and it does not address not the wider issues.
B and L v UK [2006]
FACTS:
JUDGEMENT: The ECHR unanimously held that the Marriage Act 1949 as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 violates the European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 12 by prohibiting a former father-in-law marrying a former daughter-in-law unless both the parties are 21 years old and the father’s son and the son’s mother have both died.
PRINCIPLE: The bar on marriages between former father-in-laws and daughter-in-laws is aimed at protecting the integrity of the family and preventing sexual rivalry between parents and children and to protect children from the changing relationships of adults around them. However, there is no incest or other criminal law provisions to stop a relationship between a father-in-law and daughter-in-law occurring even where there are children living in the home, therefore the ban on marriages in such circumstances cannot be said to prevent any confusion for children of the family.
Baxter v Baxter [1948]
FACTS: H and W were married, and throughout the marriage W refused to allow H to have intercourse with her unless he wore a condom.
JUDGEMENT/PRINCIPLE: Refusing H’s petition for an annulment, the House of Lords said consummation could occur even when artificial contraception was used.
Corbett v Corbett [1971]
FACTS: The plaintiff sought to end his marriage at a time when mutual consent was no grounds to annul a marriage. In order to succeed in annulment, thereby avoiding inheritance issues, Mr Corbett challenged the legality of the marriage on the basis that Mrs Corbett had been born a man. Through a number of tests, Mrs Corbett was found to have never been female and therefore could never have entered a marriage with Mr Corbett, in turn voiding their marriage.
JUDGEMENT/PRINCIPLE: The judge (Lord Justice Ormrod, who was himself a physician) created a medical “test” and definition to determine the legal status of April Ashley and, by extension, all transsexual people.
The result of this test (which defined Ms Ashley, a successful female model, as a man) was then taken up and used to define the sex of transsexual people for many purposes until the introduction of the Gender Recognition Act 2004. The 2004 Act ultimately defined the sex of transsexual people as whatever is on their birth certificate until such point as a Gender Recognition Certificate corrects the birth certificate. Hence for those who do not possess such a certificate, nothing has changed since 1970.
Bellinger v Bellinger [2001]
FACTS: The appellant, Elizabeth Bellinger was a post-operative male to female transsexual. In 1981, Bellinger married a male partner, several months after having an operation to remove the testicles and penis and create an artificial vagina but still ‘without ovaries or any other biological characteristic of a woman’. Her first claim was to seek that this marriage was deemed valid. Furthermore, the appellant sought a declaration of incompatibility . The incompatibility lay between S11[c] of the Matrimonial Causes Act 1973 that provides a marriage is void if ‘the parties are not respectfully male and female’2 and Article 8 (right to respect private and family life) and Article 12 (right to marry) of the European Convention for Protection of Human Rights and Fundamental Freedoms 1950.
JUDGEMENT: The CA both declined to grant the petition.
S v S [1962]
FACTS: The court considered an application for a decree of nullity based upon non-consummation. Medical evidence was provided as to W’s vagina being malformed so that she was unable to allow full penetration. An operation was available to correct the situation, but this might decrease any pleasure she might receive and she would still be inable to conceive.
JUDGEMENT: The petition was denied.
PRINCIPLE: It is not enough for the Petitioner to simply establish that they have not had sexual intercourse since the date of their marriage. The fact of the availability of the operation meant that she would be able to consummate the marriage.
G v G [1924]
‘It is indeed permissible to wish that some gentle violence had been employed; if there had been it would either have resulted in success or would have precipitated a crisis so decided as to have made our task a comparatively easy one. But the husband’s answer to the complaint that he did not so act, when put to him in cross-examination, is that he was very anxious to awaken the sexual instinct; that he had found her on many occasions hysterical and tearful, and that he felt that any attempt with even mild and gentle force would only hinder and not help the end which he desired.’
Requirement for capacity to consent to marriage
Park v Park [1954]: must be ‘mentally capable of appreciating that it involves the responsibilities normally attaching to marriage’
Sheffield City Council v E and S [2004]
FACTS: The council sought an order to prevent E, a patient, from contracting a marriage which it considered unwise. As a preliminary issue the parties sought guidance as to the questions to be put to the expert as to capacity. The woman suffered disabillities including functioning at the equivalent age of 13. The man had a serious record of sexual violence. Nevertheless the issue on whether she could marry was only whether she understood the marriage contract and its nature and duties. Whether others would make the same choice in wisdom was not the issue. The doctrine of necessity has no place in relation to marriage, which depended exclusively upon consent. A persons’ best interests were not at issue. Questions of capacity are always issue specific.
JUDGEMENT/PRINCIPLE: ‘An adult either has capacity [in relation to a particular matter] or he does not. If he does, then, at least in relation to that issue, the Family Division cannot exercise its inherent declaratory jurisdiction, because it is fundamental that this jurisdiction can be exercised only in relation to those who lack the relevant capacity.’ and ‘There is, so far as I can see, no hint in any of the cases on the point – and I have gone through them all – that the question of capacity to marry has ever been considered by reference to a person’s ability to understand or evaluate the characteristics of some particular spouse or intended spouse. In all the cases, as we have seen, the question has always been formulated in a general and non-specific form: Is there capacity to understand the nature of the contract of marriage?’ and ‘In relation to her marriage the only question for the court is whether E has capacity to marry. The court is not concerned – has no jurisdiction – to consider whether it is in E’s best interests to marry or to marry S. The court is concerned with her capacity to marry, not with the wisdom of her marriage in general or her marriage to S in particular.’
Szechter v Szechter [1970]
FACTS: Two Polish citizens H and W married in Poland (then under Communist rule), so that W would be released from prison and they could emigrate to Israel together. Later, both being domiciled in England, W petitioned for nullity. Having taken notice of the fact that duress vitiated consent in Polish as well as English law, the judge said it was not sufficient that consent was given to escape a disagreeable situation such as penury or social degradation: a threat of immediate danger to life, limb or liberty was needed.
JUDGEMENT: In this case, however, the necessary threat was clearly present, and the marriage would be annulled.
PRINCIPLE: Legal test for duress is ‘a genuinely held fear caused by threat of immediate danger… to life, limb or liberty’
Hirani v Hirani [1983]
FACTS: At the time the wife was 19 years of age, living with her parents in England. They are Indian Hindus. She made the acquaintance of a young Indian, Mr. Hussain, who is a Muslim. Her parents were very upset when they discovered this and naturally objected to her association with this man. According to Mrs. Hirani’s evidence, which the learned judge accepted, her parents immediately made arrangements for her to marry Mr. Hirani. Her evidence went on to say that she had never seen Mr. Hirani, nor indeed had her parents ever seen Mr. Hirani, but within a fortnight of that first conversation, they had arranged for her to marry Mr. Hirani. They put great pressure on her to go through with this ceremony, the threat being: “You want to marry somebody who is strictly against our religion? He is a Muslim, you are a Hindu; you had better marry somebody we want you to, otherwise pack up your belongings and go. If you do not want to marry Mr. Hirani and you want to marry Mr. Hussain, go.” Of course, she had no place to go and no means of supporting herself at that age and in those circumstances if she did leave the family home, and so, in spite of her opposition, she was forced to go through with the civil ceremony and after that she returned to her parents. She did not go to live with her husband until after the subsequent religious ceremony which took place on 27th February. She said that she was crying all the way through it and was utterly miserable, but after that ceremony she did live with Mr. Hirani for six weeks. After that she left and went to Mr. Hussain. She has never been back and there was no sexual intercourse between her and Mr. Hirani during that six weeks.
JUDGEMENT: Appeal allowed. Decree Nisi pronounced.
PRINCIPLE: Legal test for duress is - any threats/pressure that destroyed the reality of consent to marriage
NS v MI [2006]
FACTS: When N was 16 years old, her parents had taken her from the United Kingdom, where she had been born and brought up, to Pakistan purportedly for a holiday. While she was there, she realised the real purpose for her visit was to marry her cousin. N begged the respondent husband (M) not to marry her and to let her return to the UK, but he refused. N’s family told her the only way she would be returning to the UK would be if she married M, and her parents threatened to kill themselves if she did not marry him. N’s passport had been kept by her mother during her time in Pakistan and was only returned to her upon her return to the UK. The marriage went ahead, but was not consummated, and N returned to the UK five months later. N served a petition upon M. After initially saying that he intended to defend the petition, he subsequently said he would not.
JUDGEMENT: N’s evidence was accepted, she had established her case and a decree nisi of nullity was granted on the ground of duress.
PRINCIPLE: Duress must be subtle, insidious, pervasive and powerful
B v I (Forced Marriage) [2010]
FACTS: The plaintiff was a young English woman of Bangladeshi descent; her first language was English though she understood some Bengali. When she reached 16, in January 2006, she was taken on holiday to Bangladesh and was introduced to her 18 year old cousin, whom she made clear she did not wish to marry. Towards the end of the holiday the plaintiff was given a gift of some clothes and persuaded to wear them. She was then kept in the room until the father, mother, and grandmother arrived with the defendant and an Imaam and a ceremony was conducted. The plaintiff believed that the ceremony was a form of betrothal but the documents shown to the court proved it had been a marriage. Subsequent to her return the plaintiff had left the family home and was living at a secret address.
JUDGEMENT: Granted a declaration that there had never been a marriage capable of recognition within the jurisdiction
Whiston v Whiston [1995]
FACTS: A man obtained a decree of nullity on the grounds of of his wife’s bigamy; granting the decree, the judge awarded R ancillary relief amounting to Pound Sterling 20 000. The Court of Appeal affirmed the decree but quashed the financial award. Bigamy is a crime, they said, and the court as a matter of public policy should not entertain claims for financial relief from a knowing bigamist.
