Legal formalities for stable and intimate relationships

Question 1

What has historically changed with marriage

Answer 1

religion, 1753 Clandestine Marriage Act- only marriages in statutory formalities was lawful

Marriage Act 1836- allows civil ceremony

Marriage Act 1949- consolidation Act.

Now- legal religious regulation or civil ceremony. Defined by law, acquire legal status, increasingly secular.

Question 2

Give some reasons to marry

Answer 2

Joint home ownership, legal status, named persons for pensions, parental rights

Question 3

What does burden v UK 2006 tell us

Answer 3

siblings cohabiting not entitled to same tax exemption on co owner death as married couples or civil partners.

Question 4

Give the three types of marriage

Answer 4

Civil (registrar), religious (church), alternative (non legal)

Question 5

What happened in Hyde 1866

Answer 5

“Hyde sought divorce from his wife. They had been married in Salt Lake City in 1853 according to the rites of the Mormon Church, which had formally endorsed polygamy in 1852.Hyde had, however, subsequently rejected Mormonism and had been publicly critical of polygamy.As a result, he had been excommunicated by the Mormon Church and divorced from his wife, who had subsequently married Woodmansee”. (Probert)

Had English law recognised the Mormon divorce, there would have been no need for Hyde to petition for divorce in the English court.

Question 6

What is a KEY QUOTE about the definition of marriage in Hyde 1886

Answer 6

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”

Question 7

What happened in Bellinger 2001

Answer 7

Regarding the nature of marriage as a union of one man and one woman in relation to those who have had gender reassignment surgery and who identify as a woman, having been born as a man.
´Hyde v Hyde was discussed in CA, as was Woodmansee (1866). “Marriage, like rape and adultery, was a relationship in which the sex, not the gender, of the participants was an essential determinant.”
´[2003] HL appeal rejected. Declaration of incompatibility made for MCA 1973 s1(c).

Question 8

What happened in Ghaidan 2004

Answer 8

´Lord Millett dissenting:“Marriage is the lawful union of a man and a woman. It is a legal relationship between persons of the opposite sex. A man’s spouse must be a woman; a woman’s spouse must be a man. This is of the very essence of the relationship, which need not be loving, sexual, stable, faithful, longlasting, or contended.”

Question 9

What are the needs of a legal marriage

Answer 9

• Free and full consent: over 16 with legal capacity, 16-18 with parent consent. Not already married- OAPA 1861 s57 bigamy an offence.
• Biologically not related (Marriage prohibited degrees of a relationship act 1986)- B v UK 2005
• Article 16 universal declaration of human rights
• forced marriage act 2007, provides protection orders and s63 A family law act 1996
• no consanguinity
• not already married-

Question 10

What are the law commission reviewing around marriage in 19/20

Answer 10

The project will:

• Consider where a wedding should be able to take place.
• Consider how to remove unnecessary red tape which can hamper choice and increase the cost of wedding venues.
• Aim to ensure that the law works for all couples and all faiths, including those who are not as well served by the current buildings-based system.
• Seek to make the law more simple and certain, so that it is clear whether a couple’s marriage is legally valid.

Question 11

What is s1 of the MA 1949 about

Answer 11

marriage restrictions

Question 12

What is s2 of the MA 1949 about

Answer 12

under 16 marriage

Question 13

What is s3 of the MA 1949 about

Answer 13

Under 18 marriage

Question 14

What is a void marriage

Answer 14

never legally existed

Question 15

What are the grounds for a void marriage

Answer 15

Blood relationships (consanguinity) – Not allowed are parent/child, grandparent/grandchild, brother/sister, uncle/niece, aunt/nephew. This includes half-blood relations. (Cousins can marry under English law.)

Relationships based on marriage (affinity)- when H & W marry they become one. Therefore cannot marry anyone with affinity ties.

Forced marriages

Bigamy

No consummated

duress

Mistake

Unsound mind (MHA)

Veneral disease (12 e)

Getting another preggers if not known (12 f MAC)

Question 16

What does s11 a ii of the MCA say about void marriage

Answer 16

S11 (a) (ii) MCA 1973-´
Marriage will be void under S.11(a)(ii) if either party under 16.
Reflects criminal law that unlawful to have sex with under 16 year olds.
If under 18 need consent of those with parental rights.
Registrar may consent or apply to court.

Question 17

What does s 11 b MCA 1973 prohibit

Answer 17

Marrying if already married

Question 18

What does s11 c of the MCA prohibit

Answer 18

polygamy

Question 19

What does s 12 a MCA 1973 say about voidable marriages

Answer 19

remains valid until decree of nullity granted

Question 20

What is the law around marriage consummation

Answer 20

No need for orgasm (R v R 1951)/ Condom counts (Baxter 1948)/wilful refusal (12 b). Not grounds for SS marriage

Question 21

What bars to relief are there in a voidable marriage

Answer 21

S.13(1) provides that a petition will not be granted if P, with knowledge that marriage was voidable, had led R to believe that he or she would not do so & it would be unjust to R grant decree.
Therefore 2 limbs that have to be satisfied.

S.13(3) - P must be ignorant of VD, pregnancy or GRC.

Delay (s13(2)): provides that proceedings for nullity, where P is relying on grounds other than non-consummation or issue of an interim GRC, must be brought within 3 years of date of marriage unless court grants leave.

Unless leave granted (s14(4)).

´6 months of GRC (s13(2A) – inserted by GRA 2004: provides that where the parties are married, any application for a decree of nullity must be made within 6 months of issue of interim GRC.

Question 22

What does Hudson v Leigh 2009 tell us about the facts of voiding a non marriage

Answer 22

The court explained that in deciding the effect of a ceremony, the particular facts of the case should be taken into account, including:
-Whether the ceremony purported to be a lawful marriage;
-Whether it had all or enough of the hallmarks of marriage;
-Whether the minister, or other officiating person, and the couple believed, and intended, that the ceremony gave rise to the status of a lawful marriage,
And what were the reasonable perceptions and beliefs of those who attended the ceremony.

Question 23

What are the grounds for nullity in CPA 2004

Answer 23

• Void- ´Ground on which a civil partnership will be void. Civil Partnership Act 2004:
• ´s.49(a) not same sex
• s.49(b) already married or in CP.
• s.49(c) either of them under 16.
• s.49(d) within prohibited degrees.
• Eligibility CPA 2004 Chapter 1 s 3:(1)Two people are not eligible to register as civil partners of each other if - (a) they are not of the same sex,(b) either of them is already a civil partner or lawfully married,(c) either of them is under 16, or(d) they are within prohibited degrees of relationship.

Question 24

What grounds is CP voidable

Answer 24

CPA s.50(1):(a) no valid consent.(b) mental disorder.(c) pregnant by someone else.(d) interim GRC issued.(e) new gender at time of formation.

Question 25

What are the bars to relief where a CP is voidable

Answer 25

S.51(1)(a): the A, with knowledge that it was open to him to obtain a nullity order, conducted himself in relation to the R in such a way as to lead the R reasonably to believe that he would not seek to do so, & S.51(1)(b): that it would be unjust to the R to make the order.