formalities of marriage Flashcards
soleminisation of marriage
before 1753 marriage act how marriage was soleminised was not formalised in a statute
early practises of handfasting and broomjumping
1753 act- marriages were required to be conducted by church officials
historically marriage implemented
coverture- womans legal existance merged with husbands so she had non of her own
conjugal rights- husband could demand a right to sexual intercours and until R v R 1991 non consenual in marriage was not rape but a conjugal right
the marriage act 1949
the act that governs the formalities for a marriage such as who where and how
-rules of affinities and consanguinities for reasons such as health risk (but can marry first cousin)
what is the legal recognition of marriage and civil partnerships
marriage- legally recognised status which attached mutual legal rights and duties on the marrying couple
rules on who can and can marry
same sex can now legally in the UK or can opt for CP under CP act 2004
both can be valid,void or voidable
civil marriage available to same sex couples under the marriage (same sex couples) act 2013
what makes a legally valid marriage or CP?
its binding until death divorce or dissolution
freely consented too- forced marriages act 2007
supposed to be for life
monogamous
in accordance with marriage act 1949 (correct location/offcial/timescale…)
what is the presumption of marriage?
that the marriage ceremony has complies with all the legal requirements set by english law
what is a non-qualifying ceremony?
religious ceremonys
akhter v khan 2020- couple had a relationship and entered a nika at a restaurant, together for 18 years and 4 children, had been told by british authority that they should go through a formal civil ceremony aswell but never did but intended to, husband claimed was just a religious blessing and not married, court believed was a void marriage and if was found valid wife would have been protected by law however COA found not a marriage as no right to marriage was engaged as they know they needed the civil ceremony but didnt
when are marriages/CP void?
these never actually came into existance becuase of a fundamental defect
sc11 MCA 1973 a marriage after 31 july 1971 will be void if-
- the parties are withinh the prohibited degree of relationships
-either party is under 18
(marriage and civil partnership (minimum age) act 2022 raised from 16 to 18
- at the time of the marriage either partu was already lawfully marries or in CP
the civil partnership (opposite- sex couples) regulations 2019
-allows heterosexuals to form civil partnerships as way to avoid religious and cultural associations with marriage
elligibility restricted if-
- either party already in a CP or married
-either party under 18
- they were in a prohibited degree of a relationship (blood or adoption)
affinities not in the prohibited degrees of relationships
sc 11(a)(i) MCA-
less strict that by blood
can marry- step child/parent/grandparent and parent in laws and adopted siblings
cannot marry- adoptive parents/child
civil partnerships
created by the civil partnership act 2004
originally ony available for same sex but following R (steinfield) v Sos for international development 2018 the CP (opposite sex couples) regulations 2019 made it availabe to opposit sex
voidable marriages and CP
valid until annulled
section 12 MCA
-sc 12(a/b) same sex cannot be voidable for lack of consummation unlike opposite sex
-sc 12(c) not validly consented to it
NS v MI- forced marriage in pakistan by parents, marriage annulled
-sc 12(d) mental disorder so unable to consent
sheffield city council v e 2005- low intelligence but high degree of intelligence not required for marriage
Re RS- man with autism and intellectual disabilities, lacked mental capacity to marry as he could not appreciate the mutuality involved in marriage
-sc 12(e) communicable venereal disease
-sc 12(f) the female wa pregnant with another mans baby
bars to annulment
despite evidence which could jutsify an annulment there may be reasons why the marriage should not be annulled
according wtih sc13 MCA if:
- approbation (possible to avoid marriage but petitioner had carried on endorsing the marriage and behaving as happy in the marriage for so long that it would be unfair on the other person)
-3 year bar for relying on a sc12 application
-6 month bar for relying on Gender recognition certificate
-ignorance (cannot issue a decree unless satisfied that the petitioner was ignorant of the facts at the time of the marriage)
consequences of marriage/CP compared to cohabitants (no consequences)
-need formalities to end the union (dovorce/dissolution/nullity)
-court powers to redistribute property at the end of union, cohabitants court only has power to declarewho owns what and has no power to require one party to transfefr property
-during union one party may seek finanical support from the other
-a father married to mother of his child will automatically obtain PR
-a spouse will effectively inherit deceased estate automatically on intestacy
-spouse benefit from taxes such as CGT and inheritance tax
-can limit who marries but not who cohabit as no record of cohabitation
-at the end of marriage parties can seek court orders that require the other to pay maintenance, cohabitants cannot seek maintenance
