Formation Of Marriage And Civil Partnership Flashcards
Hyde v Hyde & Woodmansee 1866
Marriage may be defined as the voluntary union for life of one man and one woman to the exclusion of all others (traditional view)
A v K 2011
Parties married by telephone, one in Scotland and one in Pakistan
Valid under Pakistani law but invalid under scots law
Where did the marriage actually take place?
Court said marriage took place in Pakistan and was valid because it had been enters into under Pakistani law and Scotland recognised foreign marriages so long as they have been formed properly
Both parties and celebrant must be present in ceremony in Scotland
(Both parties must be present)
Saleh v saleh 1987
Marriage declared void because no compliance with any formalities
Wanted to get married in Grangemouth, unable to resolve query as to how free that man was to marry (he may have already been married)
Ended up marrying in Edinburgh, no marriage schedule and no marriage notice lodged
Couldn’t be saved by s. 23A, no real registration of marriage, declaration of nullity
Long v Long 1950
Wife who was mentally disabled
Husband wanted marriage annulled on ground that wife unable to understand nature of marriage at time of ceremony
Court dismissed his action
Just because wife was mentally disabled it didn’t follow she couldn’t understand the concept of marriage
Onus to prove lack of understanding on person seeking annulment
Complete mental incapacity is usually required as marriage is a simple concept
(Where one party incapable of understanding marriage or CP is void)
Lang v Lang 1921
Woman tricked man into marriage by telling the man he was the father of her unborn child
He was unable to have marriage annulled on this basis
Consent given in error about the quality of the other party is irrelevant
(Compromised consent)
Mahmood v mahmood 1993
Young woman subject to serious pressure by parents and family members threatened to disown her
Sufficient to invalidate her consent to marriage
Sohrab v Kahn 2002
Women’s mother threatened to send daughter to Pakistan and commit suicide if she didn’t go through with the marriage
Duress successfully established
Singh v Singh 2005
Married against her will
Mother threatened to destroy her passport and leave her in India if she didn’t go through with the marriage
But she returned to Scotland
Court expressed caution and said threats had to be of immediate danger to life limb or liberty, suggested previous cases didn’t satisfy this
(Threats must be of immediate danger)
F v F 1945
Impotency= inability to achieve full penile penetration of the vagina
Inability can be physical or mental but must be some inability rather than unwillingness
Corbett v Corbett 1971
“Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgement be biological… a woman is a person who is naturally capable of performing the essential role of a woman in marriage”
(Old view of transgender people in marriage)
Goodwin v UK 2002
Overruled Corbett case and ultimately led to gender recognition act 2004
