Formalities of Marriage and Civil Partnership Flashcards
Statute which contains formalities for marriage and civil partnerships
Marriage Act 1949 or
s.2 onwards of the Civil Partnership Act 2004
Definition of void marriage
s. 11 MCA 1973 - as though it never happened,
- under age of 16 corresponds with s.2 MA 1973
Definition of voidable marriage
s. 12 MCA 1973 - where law recognises there may be a problem with the marriage but if no one complains then it is no one’s business
- on grounds of non-consummation or lack of consent
Statutory provisions on the prohibited degrees of relationship which render a marriage void (not same as voidable)
Marriage Act 1949 - part 1 includes the prohibited degrees of consanguinity, part 2 deals with marriage of step-parents
Statutory provisions on the prohibited degrees of relationship which render a marriage void (not same as voidable)
Marriage Act 1949 - Schedule 1, part 1 includes the prohibited degrees of consanguinity, Schedule 1, part 2 deals with marriage of step-parents
in accordance with s.1 of the same Act
Case which is the exception to the rule in s.2 MA 1973 and s.11(a)(ii) MCA 1973 which deems marriages to persons under 16 void
Pugh v Pugh [1951] - Wife below the age of 16, marriage was valid because it was recognised in the country in which they married.
BUT… now not possible with current immigration laws for a man to bring his wife into the country if she is below the age of 16
Two cases on polygamous marriages as void under s.11 MCA 1973
- Baindail v Baindail [1946] - foreign marriages are recognised as long as they don’t involve an English person. English woman entered marriage with an Indian man in India and later found out he was already married, she petitioned for a decree of nullity and was successful, she was a British citizen so her marriage wasn’t recognised.
- Bibi v Chief Immigration Officer [1998] -Both Bangladeshi citizens, Mr Bibi married for a second time. The family moved eventually to the UK, lived here for a number of years until Mr Bibi’s death. She sought a widow’s pension as the surviving spouse but she couldn’t get it because there was another wife recognised as such in English law, cannot have two women claiming pensions in such a case.
Counts as consummation for the purposes of considering if a marriage is voidable through lack of consummation even if protection is used (i.e. not for the purposes of procreation)
Baxter v Baxter (1948)
Two grounds on which a marriage is voidable for lack of consummation
s. 12(1)(a) MCA 1973 - incapacity - must exist at the time of the marriage coming into existence, both parties can use this ground
s. 12(1)(b) MCA 1973 - wilful refusal
Case on physical incapacity as a ground for lack of consummation under s.12(1)(a) MCA 1973 for a voidable marriage
SY v SY (1963) - Wife had a physical disability that her vagina “in the form of a cul-de-sac”, no uterus so husband was unable to penetrate.
Held - Incapacity must be permanent and unfixable, as this was not the case, as she was willing to get surgery, here the husband did not get his nullity.
Case on mental incapacity as a ground for lack of consummation under s.12(1)(a) MCA 1973 for a voidable marriage
G v G [1924] - Spouse can have an “invincible repugnance” when engaging with sexual intercourse. Held: unable to consummate with husband.
- If someone has a psychological aversion to having sex with their husband or wife then that can count as incapacity to consummate - BUT… would need a proper psychological diagnosis, is a strict question of fact (harsh application in Singh v Singh [1971])
Two cases on the test for mental capacity for consummation of a marriage under s.12(1)(a) MCA 1973 for a voidable marriage
- Sheffield City Council v E [2015] - Intellectual capacity to show that you understood the rights, duties and obligations involved in being married. It is not person-specific – not about who you’re marrying, it’s about whether you understand marriage.
- Re SA (Vulnerable Adult with Capacity: Marriage) [2006] - Young woman, turned 18, she was deaf and had behavioural problems. Family originally from Pakistan. Even though she had capacity, the court can stop the marriage from occurring because she was vulnerable –> extended to include vulnerable people
Case on the test for mental capacity for cohabiting with a partner –> linked to voidable marriages through incapacity to consummate
City of York Council v C [2013] -
Man in prison for serious sexual offences married a woman, he was about to be released and the local authority had concerns whether this woman could live with her husband since she has considerable learning disabilities and he showed no remorse for his crimes.
Test of capacity to live with someone – referenced the Sheffield but the test for marriage is decision specific, contrasted with person and act specific tests.
Test for living with someone is much more subjective and contextualised than the test for marriage – so possible to pass the test of capacity to cohabit but not to marry.
Extended jurisdiction of 12(1)(a) MCA 1973 for voidable marriages to protect vulnerable people
Re SA (Vulnerable Adult with Capacity: Marriage) [2006]
Definition of ‘child of the family’ in marriage and civil partnerships
s.78 Marriage Act 1949 for marriage
Schedule 1, s.2(2) Civil Partnership Act 2004
