Creation Of Family Relationships Flashcards
Marriage definition (new)
2001 Bellinger v Bellinger Thorpe LJ
“A contract for which the parties elect but is regulated by the state because it affects the status upon which a variety of entitlements, benefits and obligations’
Marriage definition (old)
Lord Penzance, Hyde v Hyde 1886
“As understood in Christendom marriage is the voluntary union for life for one man and one woman to the exclusion of all others”
Requirements for marriage
- Capacity [of where domiciled]
- Formalities [of country you’re married]
R v R (divorce: jurisdiction: domicile) 2006
Hard to change domicile,
Family living in France but still spoke English, English banks, no French nationality
Domicile Types
- Origin (born)
- Dependence (born to 16)
- Choice (can change after 16)
Capacity to marry
- law of domiciled country
- s.11 Matrimonial causes Act 1973
S11 (a) (I) matrimonial causes act 1973
No capacity to marry within degrees of relationship
- consanguinity
- affinity
S11 (a) (ii) matrimonial causes act 1973
Must be 16+
(Set to change to 18 MCPA 2022)
S11 (a) (iii) matrimonial causes act 1973
No capacity if formalities disregarded
S11 (b) matrimonial causes act 1973
No capacity if already married
S11 (d) matrimonial causes act 1973
England / wales domicile - no polygamy
Consequences of Marriage
Incidents of consortium
- right to surname
- right to mutual sex
- right to jointly decide family home
- financial obligations
- auto PR
- property rights
Cohabitants
- no definition, no regulation, no protection
Where couple live together without ceremony of CP or marriage
Cohabitation Reform (for)
- protection of kids / cohabitants on breakdown
- property rights, equity / trust remedies expensive
