Lecture 2- Marriage, divorce, Adult relationships

Question 1

What is the definition of Marriage?

Answer 1

• No Universal Definition (but domestic legislation)
  - legal or symbolic relation between persons which creates rights or obligations between them and biological/ adopted children.
• See Article 12 ECHR right to marry

Question 2

What are the INSINTRIC CONDITIONS of marriage?

Answer 2

• to have the capacity to marry
• to hhave agreed to the marriage with free consent and free of force.

Question 3

What are the EXTRINSIC conditions of marriage?

Answer 3

• to perform certain ceremonies.

Question 4

Is the ‘‘right to divorce from marriage’’ a human right under the ECHR?

Answer 4

No, the right to dissolve a marriage is not considered under the ECHR/ EU Law.

Question 5

What are the different grounds of divorce?

Answer 5

1. Fault-based divorce (divorce= sanction)
2. divorce upon irretrievable of marriage (divorce= remedy)
3. divorce by mutual consent (divorce as an autonomous decision by both spouses)
4. divorce on demand (divorce on demand does not have to be with consent of both spouses)

Question 6

When is fault-based divorce established

Answer 6

• when matrimonial offences are comitted such as; adultery, abuse, bigamy, being in prison for a certain amount of years
• must prove very specific reasons as to why you should divorce (=hard)

Question 7

How is divorce-upon-irritrievable breakdown established?

Answer 7

• IT IS A CATCH ALL TERM.
• it is a divorce when there was an affair, or when it is impossible to live with eachother.
• proven in 3 ways
• 1. SUBJECTIVE- the court is convinced the marriage cannot be saved.
• 2. OBJECTIVE-stated period of de facto separation, on which the accessibility of the divorce essentially depends
• 3 COMBINATION OF OBJECTIVE AND SUBJECTIVE

Question 8

what is divorce- with mutual consent?

Answer 8

• Both parties want to divorce and the court searches for no reasons behind it.
• court might set additional requirements:
• marriage must have had a certain duration (Greece)-
• separation period (England)

Question 9

What are the Three models of registration of the partnership?

Answer 9

1. MONISTIC- only marriage is possible
2. DUALISTIC- registry for same-sex couples and marriages for opposite-sex couples
3. PLURALISTIC- All couples are given 2 possibilities to formalize their relationship- marriage and registred partnership

Question 10

What is the difference between opt-in and opt-out regimes for non-marital relationships?

Answer 10

Opt-in regime – does not apply automatically,** to have access to rights and remedies a couple must register of formalize their relationship**
Default/opt out - rights and remedies apply to all cohabiting couples (with or without a set of objective criteria, ex. Duration, children, finance) but couples may opt out by agreement.

Question 11

What is the difference between assimilation and Differential
for non-marital relationships?

Answer 11

Assimilation - cohabitants are placed in in same position as spouses
Differential - cohabitants are given different- inferior- rights and remedies

Question 12

What are the intrinsic conditions of marriage?

Answer 12

1. To have the capacity to marry.
   - be of certain age, have a certain status, not be related by marriage or blood.
   - have mental capacity to understand consequenses of marriage
2. To have agreed to the marriage with free consent and free of force
   - so not someone is suffering from intoxication, brain damage, mental disability, mental instability or insanityto extent that they cannot understand marriage.
   - NOT someone whos consent was obtained through threats– marriage be void.