formalities of marriage, void and voidable marriages

Question 1

Where is the classic definition of marriage found

Answer 1

Hyde v Hyde, in Lord Penzance’s, ‘- voluntary union for life of one man and one woman to the exclusion of all others’

Question 2

Which case indicates that the test for whether married or not is an objective one

Answer 2

Hakeem v Hussain, married in civil ceremony but had not had a religious ceremony. Before, the religious ceremony the husband changed his mind, the court held them to be married.

Question 3

What was decided in Hudson v Leigh

Answer 3

opposite is true, although you think you might be married you might not be despite subjective view

Question 4

What are the 5 ceremonies that create a valid marriage

Answer 4

1) civil ceremony 2) Anglican ceremony 3) Jewish Ceremony 4) Quaker ceremony and 5) other religious ceremonies (although these have the most complex and involve the most issues with formalities)

Question 5

what other formalities must be complied with

Answer 5

the place in which a marriage of CP may legally take place, the identity of the presiding person, the need to give notice, register the marriage or CP, have it witnessed.

Question 6

What is a void marriage

Answer 6

a marriage that never came into existence because of a fundamental defect- either spouse can seek a decree of nudity and can access ancillary relief

Question 7

Which S deal with prohibited degrees of relationship

Answer 7

S 11(a)(i) MCA

Question 8

What does Part One prohibit

Answer 8

prohibits decrees of blood relationships, this reflects a social taboo and attempts to limit genetic disease and sexual rivalry

Question 9

B and L v UK

Answer 9

a woman wished to marry her ex father in law. This was not allowed, she challenged this on breach of Art 12. A breach was found in ECHR, the court found that since they were already living toegtehr as a family unit, and there was no confusion of the part of the child they should be allowed to marry. However, before the Marriage (Remedial) Order, only valid if 21 and both relations had died

Question 10

Stubbing v Germany

Answer 10

a man, who was adopted at 3, went on to have children with his biological sister. He was charged and convicted. He argued breach of Art 8 and 12, the court dismissed this is favour of policy reasons to protect against incest.

Question 11

What does part 2 deal with

Answer 11

with marriage of step relatives, this will be prohibited unless 21 and not a child of the family S 78 MA which is aimed at deterring sexual abuse which is supported by the criminal law- sexual offences act

Question 12

Which section prohibits a marriage of someone under the age of 16

Answer 12

S 11(a)(ii) MCA

Question 13

Pugh v Pugh

Answer 13

a 15 year old girl was validly married die to the marriage taking place in a country where it is legal to marry someone under 15. Since the marriage was not conducted in the UK and did not concern a UK citizen, it must be valid as in the country it was celebrated in.

Question 14

Alhaji Mohamed v Knott

Answer 14

hence sexual offence of sexual conduct with a mirror will not be criminal.

Question 15

Which section makes a marriage void if certain formalities are not adhered to

Answer 15

S 11(a)(iii) MCA a failure the courts will be prperared to render void, however when so substantial the courts may consider it a non-marriage

Question 16

Which section prohibits marrying someone already married to

Answer 16

S 11(b) MCA and S 57 OAPA

Question 17

Which section deals with Polygamous marriages

Answer 17

S 11(c) MCA

Question 18

R v M

Answer 18

polygamous marriages are subject to a rule of recognition. If such a marriage is lawful in the country it was celebrated then the marriage will be held to be valid in the UK.

Question 19

Baindail v Bandail

Answer 19

however although marriages will be valid if celebrated in a recognised country, this rule will not apply where the marriage concerns a British citizen.

Question 20

Bibi v Chief Immigration Officer

Answer 20

the UK would not recognise the marriage of the second wife where she tried to claim widows allowance on public policy grounds, only one person is eligible to claim such a benefit

Question 21

Which section deals with voidable marriages

Answer 21

section 12 MCA 1973

Question 22

What is a voidable marriage

Answer 22

is a valid marriage unless and until it is annulled only during the life time of both the spouses.

Question 23

What does not apply to same sex couples

Answer 23

the consummation requirement

Question 24

D-E v A-G

Answer 24

it was held that consummation occurs when there has been sexual intercourse (any other form of sexual relation does not count as consummation) which is `ordinary and complete, and not partial and imperfect’.

Question 25

Baxter v Baxter

Answer 25

the HL condoned the use of condoms, further underlining the fact that procreation need not be intended or anticipated as a possible by-product of the exercise.

Question 26

Grimes v Grimes

Answer 26

the court held that where the husband ‘withdrew’ from his wife, no consummation had taken place. Consummation required “emission” within one’s wife.

Question 27

White v White

Answer 27

same factual situation as White. Although, only two days later, Wilmer J in White v White deemed ejaculation not to be a prerequisite of consummation.

Question 28

Cackett v Cackett

Answer 28

the conclusion in White was preferred over the one reached in Grimes.

Question 29

Clarke v Clarke

Answer 29

despite the wife conceiving a child by a ‘rouge, persistent sperm’ the marriage was nevertheless unconsummated for want of actual intercourse.