Marriage Flashcards
0
Q
Does ECHR Art 12 apply to both homo and hetero sexual marriages?
A
No, Just heterosexual.
1
Q
Does ECHR Art 12 apply to marriage, cohabitation and civil partnerships?
A
No, Just marriage.
2
Q
Under Art12 of the ECHR can transexuals marry in their new gender?
A
Yes
3
Q
What year did the ECHR rule that marriage rights extend to transexuals?
A
2002
4
Q
Under what act in the UK can transexuals marry or enter into a civil partnership in their acquired gender?
A
Gender Recognition Act (2004)
5
Q
Christine Goodwin v. UK - Which Convention right(s) was held to be violated and why?
A
Art 8, owing to a clear and continuing international trend for accepting transexual people.
Art12, Court held it was up to each state to determine the conditions and formalities of transexual marriage.
6
Q
Schalk and Kopf v. Austria - what did the ECHR state?
A
Art 12 is inapplicable to the applicants complaint. However, as a matters stand it should be left up to each state to determine if same-sex Marraige should be permitted.
7
Q
What is the legal effect of an engagement in E,W and S at common law?
A
It is a contract and if either party withdrew without justification than an action could be brought for breach of contract and damages sought.
8
Q
Under which acts for homo and heterosexual marriage is the promise not an enforceable obligation?
A
Law Reform (Husband and Wife) (Scotland) Act 1984 S.1
Civil Partnership Act 2004 S.128
9
Q
In which circumstances would it be presumed that an engagement ring would be returned upon the engagement being broken off?
A
If it was a family heirloom.
10
Q
In which case was it determined that any property issues arising from a broken engagement would be dealt with under the general principles of property law?
A
Shilliday v. Smith 1998
11
Q
In England and Wales which statute specifically refers to an engagement ring?
A
Law Reform (Miscellaneous Provisions) Act 1970 S.3(2)
12
Q
Under the Law Reform (Miscellaneous Provisions) Act 1970 S.1 do legal rights arise from the breach of an engagement?
A
No
13
Q
Where an engagement is broken off under the Law Reform (Miscellaneous Provisions) Act 1970 S.2. In relation to the property of the couple how would it be dealt with?
A
It would be dealt with as if they were husband and wife.
14
Q
In England and Wales which act relates to the break down of engagements?
A
Civil Partership Act 2004 S.73
15
Q
Which cases states that if the man broke off the engagement with no legal justification, he could not recover the ring, but he could if the woman was in breach?
A
Cohen v. Sellar 1926
16
Q
Bromley views the ring is a pledge and so should only be recoverably in which circumstances?
A
The ring is a family Heirloom
17
Q
A marriage is not valid unless which two things apply?
A
- The parties have capacity.
- It conforms to the formalities of the place where it is celebrated.
18
Q
In Scotland how many types of marriage are there?
A
2 - Regular (Formal) and Irregular (Informal).
19
Q
Marriage in Scotland is defined under which act?
A
Marriage (Scotland) Act 1977 S.26(2)
20
Q
Under the Marriage (Scotland) Act 1997 what are the two types of marriage?
A
- Civil Marriage
- Religious or Belief Marriage
21
Q
In Scotland do you need to be a resident to be married?
A
No
22
Q
In Scotland how old do you need to be to marry?
A
16
23
Q
In Scotland what must everyone complete and submit along with all required documents?
A
A Marriage Notice
24
In Scotland in special circumstances does the registrar allow a marriage to proceed without a Marriage Notice?
Yes
25
In Scotland under which act can the marriage notice be found?
Marriage (Scotland) Act 1977 S.3
26
In Scotland under which act can the Marriage Schedule be found?
Marriage (Scotland) Act 1977 S.6
27
In Scotland what is the Marriage Schedule?
It is the key document required for the marriage to take place.
28
In Scotland who retains the Marriage Schhedule until the date of the marriage?
The district registrar
29
In Scotland for a civil marriage who conducts the ceremony and under which act?
Conducted by a registrar
| Marriage (Scotland) Act 1977 S.8
30
In Scotland which act governs 'appropriate' places to marry?
Marriage (Scotland) Act 1977 S.18
31
In Scotland in 2002 where could couples get married?
In 'approved' places
32
Can you marry in an open space in Scotland?
Yes
33
In Scotland who decides if the location is appropriate and on what basis?
Registrar on a case by case basis
34
In Scotland who must be present in a regular marriage for it to take place?
Both parties and 2 witnesses over 16.
35
In Scotland who must sign the Marriage Schedule in a regular marriage for it to be valid?
Both parties, the 2 witnesses (16+) and the registrar
36
In Scotland can a registrar refuse to marry a same sex couple?
No
37
In Scotland in a religious or belief marriage can a registrar refuse to marry a homosexual couple?
Yes
38
In Scotland in religious or belief ceremonies what does the Marriage Schedule act as and for whom?
Licences for the celebrant.
39
In Scotland under which act is an authorised celebrant defined?
Marriage (Scotland) Act 1977 S.8(1)
40
In Scotland which act amended S.8 of the M(S)A 1977 to include non-religious bodies such as Humanist Society Scotland?
Marriage & Civil Partnership (Scotland) Act 2014
41
In Scotland under a religious or belief ceremony how quickly must the signed Marriage Schedule be returned to the registration office?
3 days
42
In Scotland in a religious or belief ceremony where can the marriage be conducted?
Anywhere agreed by the parties and the celebrant
43
In Scotland under a same-sex marriage which act governs authorised celebrants?
Marriage (Scotland) Act 1977 S.8(1B)
44
Under the M(S)A 1977 are religious and belief bodies obliged to become a prescribed body that registers same-sex marriage?
No
45
In Scotland which act governs marriage of non-compliance with formalities when both parties were present and the marriage duly registered?
Marriage (Scotland) Act 1977 S.23A
46
In Scotland under an Irregular Marriage if there is some form of ceremony will the marriage be invalidated?
No
47
Which case in Scotland permitted that even with a lack of a Marriage Schedule the marriage was valid?
Sohrab v. Khan
48
Historically in England how were all marriages aligned with the Church of England?
Requirement married in the parish of 1 party, in the presence of a clergyman with 2 witnesses present.
49
Historically in England if a licence was not obtained what had to be published?
Banns - for 3 Sundays
50
In England which act governs the methods of authorising a marriage?
Marriage Act 1949 S.5
51
Does the Church of England allow same sex marriage?
No
52
Which act states that Canon's have no duty to solomnise same-sex marriage?
Marriage (Same Sex Couples) Act 2013 S1(3), (4)
53
Under which act in Wales can the Church opt into performing same sex marriage, as can other religious organisations but NOT the Church of England?
Marriage (Same Sex Couples) Act 2013 S.8
54
In non Church of England Marriages what authority is required to legalise the marriage and where is its power derived from?
Registrar's Certificate
| Marriage Act 1949 Part 3
55
In CofE marriages how many witnesses are required and where is this stated?
2
| MA 1949 S.22
56
In CofE marriage how long after the granting of a licence must the marriage take place?
3 months
| MA 1949 S.12
57
Under which act is a CofE clergyman not required to solomnise a marriage where they believe that one party has acquired that gender under the 2004 Gender Recognition Act?
MA 1949 S.5B
58
In a CofE marriage which act states that it is not valid if it is done in secret?
MA 1949 S.44(2)
59
In England in Civil Marriages which act states the words to be used?
MA 1949 S.45(3)
60
In England an approved place is defined in which piece of legislation?
Marriages and Civil Partnerships (Approved Premises) Regulations 2005
61
Under theMarriages and Civil Partnerships (Approved Premises) Regulations 2005, a premise is defined as?
Permanently immoveable structure comprising at least a room, or any boat or other vessel which is permanently moored.
62
Is there such a thing as a common law marriage?
No
63
What is required under English Law for the Presumption of Marriage to stand?
Marriage Certificate
64
Why may a couple not have a marriage certificate yet have gone through a marriage ceremony?
They were married abroad.
65
Under English Law in which two instances may the presumption of marriage arise?
1) Presumption from cohabitation without ceremony.
| 2) Presumption from cohabitation after ceremony.
66
If a marriage ceremony under English law never took place but the couple cohabited together as husband and wife does the law view them as married?
If they have a reputation as husband and wife then the law will accept them as such
67
In which case was it determined that if a man and woman lived together as man and wife, and were treated as such the law would also?
Lyle v. Ellwood 1874
68
What must be proven for the couple to be viewed as husband and wife?
They must cohabit as if they were in fact husband and wife. This is an objective test.
69
What is the required period of cohabitation in England by the couple as if they were husband and wife for them to be viewed as such?
2 years is suggested by Borkowski
70
In England if a ceremony has taken place, followed by cohabitation - is the marriage presumed as valid?
Yes
71
In which case was a woman married and cohabited with her husband for 37 years then refused widow's allowance as it was not a valid ceremony?
Chief Adjudication Office v. Bath 2000
72
What is a proxy marriage?
A marriage in another country, in which the couple do not actually have to go for the marriage to be completed.
73
In which case was it deemed that cohabitation and having children sufficed as marriage, even though two ceremonies were not valid?
A-M v. A-M (Divorce: Jurisdiction: Validity of Marriage) [2001]
74
In which case was 7/8 years of presumed marriage not deemed sufficient enough for the doctrine of Presumtion of marriage to apply?
Dukali v. Lamrani 2012
75
In which case was it deemed sufficient that the ceremony took place and one designated official was present (even though they did not conduct the ceremony) - in allowing the presumption of marriage to apply?
A v. A (Attorney General Intervening) [2012]
76
In the case of A v. A (Attorney General Intervening) [2012], under which section of the 1949 act allowed for the validity of the marriage to be upheld and why?
S.49 as they did not knowingly and willingly breach the requirements.
77
Which case deemed it irrelevant that a ceremony took place?
Chief Adjudicating Office v. Bath 2000
78
What are the 3 types of irregular marriages in Scotland?
1) Declaration de praesenti
2) Promise Subsequente Copula
3) Marriage by cohabitation and repute
79
What is 'Declaration de praesenti'?
Man and woman should exchange consent to an immediate marriage. It can be spoken or in writing.
80
What is 'Promise Subsequente Copula'?
Marriage established by a promise followed by sexual intercourse.
Stopped July 1940
81
What is 'Marriage by Cohabitation with Habit and Repute'?
No ceremony is required but cohabitation openly and constantly as if husband and wife is required. However, behaving as such will result in the presumption they have consented to marriage.
Survived fully until 2006, not available only in limited circumstances.
82
In which case was it determined that 10 months and 23 days was enough for marriage to be presumed?
Saw v. Henderson 1982
83
In which case was it determined that 6 months was long enough for marriage to be presumed?
Kamperman v. McIver 1994
84
Does everyone have to believe the couple are husband and wife?
No, it is not absolute but a general consensus is required
85
Name two grounds of rebuttal for the presumption of marriage.
1) One of the parties has no intention to actually marry.
| 2) One of the parties intends to marry in the future.
86
Name two impediments to an irregular marriage.
1) One party is already married.
| 2) One of the parties is under the age of 16.
87
On what date did the rule of law by which marriage could be constituted by cohabitation with habit and repute cease to have effect?
May 4th 2006
88
In Scotland which act cease to give effect to cohabitation with habit and repute?
Family Law (Scotland) Act 2006 S.3
89
Which act in Scotland allowed for cohabitation with habit and repute to continue?
Family Law (Scotland) Act 2006 S.3(2), (3)
90
Which act in Scotland allows for same sex couples to be afforded the cohabitation with habit and repute marriage presumtion?
Marriage and Civil Partnership (Scotland) Act 2014 S.4(6)
91
Which part of the Marriage & Civil Partnership (Scotland) Act 2014 governs the rules for celebrants in same sex marriage?
Part 2
92
In a civil partnership was does signing the register do for the couple?
It makes them civil partners
93
Does the registrar in a civil partnership declare the couple civil partners?
No, they only instruct the parties where to sign.
94
What is civil partnership in Scotland?
Marriage by mutual consent with active involvement from the registrar or celebrant.
95
In Scotland where can civil partnership ceremonies take place?
Any registration office or appropriate place.
96
In Scotland can a civil partnership take place in a religious place?
Yes
97
Which act has a provision for converting a civil partnership into a same sex marriage?
Marriage and Civil Partnership (Scotland) Act 2014 S.10
98
In England the number of days notice required for a civil partnership is how many and from when was it implemented?
28 days from March 2015
99
In England which act governs the conversion of a civil partnership into a same sex marriage?
Marriage (Same Sex Couples) Act 2013 S.9
100
In England where are the procedures set out for civil partnership conversion into marriage?
Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014/3138
101
In England which two approaches are there to convert a civil partnership into a marriage?
1) Registration office conversion
| 2) Registration office conversion followed by completion with a religious ceremony
102
In England which act governs the grounds on which a marriage is void?
Matrimonial Causes Act 1973 S.11
103
Which act in England lists the prohibited forms of relationships?
Marriage Act 1949 Schedule 1
104
Which case in England allowed for a former father in law to marry his former daughter in law?
B and L v. UK 2006
105
In England what is the minimum age required to marry?
16-18 year olds must have parental consent.
106
In which instances will the law recognise marriages between parties under the age of 16?
In cases where they have married abroad inline with the customs of that country.
107
In England which case ended in a void marriage as a result of one of the parties still being married?
Maples v. Maples 1987
108
Under which act can a person obtain recognition in their new gender?
Gender Recognition Act 2004 S.1
109
For how many years must a transexual live in their new gender before a new birth certificate is issued?
2 years
110
Which act states that a transexual's status as a parent is not altered by their new gender?
Gender Recognition Act 2004 S.12
111
Which act states that when the gender recognition certificate is issued that person assumes their chosen gender?
Gender Recognition Act 2004 S.9
112
In which case was a marriage declared valid despite the couple marrying in order to avoid testifying against each other?
R (On the Application to the Crown Prosecuting Service) v. Registrar General 2003
113
Can financial relief be given as a consequences of a void marriage?
Yes, where one party is wholly innocent or the court is persuaded of a good reason for doing so.
114
In marriages where there is a lack of capacity or defective formalities to the knowledge of the parties will the marriage be valid?
No, It will be void regardless of the parties wishes.
115
What is a non-marriage?
It is a ceremony that is so far from what an effective marriage is like.
116
In which case was the ceremony realised to not comply with English Law (therefore it was a non-marriage) but the couple proceeded anyway, planning to formalise the marriage upon their return to England?
Hudson v. Leigh 2009
117
How does a voidable marriage come to an end?
Only when a court order is made?
118
Is a child born to a voidable marriage illegitimate?
No
119
A child born to a void marriage is illegitimate unless?
The couple believed their marriage to be valid.
120
Who can apply to have a court confirm a marriage is void?
Any interested party
121
Can anyone apply to have a voidable marriage decalared invalid?
No, only the parties to the marriage can.
122
What are the grounds on which a Marriage may be voidable in England? (8 Grounds)
1) Non-consummation
2) Non-consent
3) Mental Disorders
4) Venereal Disease
5) Pregnancy
6) Gender recognition certificate
7) Bars to Nullity
8) Nonage
123
What is non-consummation?
If the marriage has not been consummated due to the incapacity or wilful refusal of a party.
124
Can you rely on your own wilful refusal to consummate the marriage to make it voidable?
No
125
In which case was it determined that the husbands imprisonment was not sufficient for non-consummation to apply?
Ford v. Ford 1989
126
What is non-consent?
Either party did not consent to the marriage.
127
Give 3 examples of non-consent.
1) Duress
2) Mistake
3) Unsoundness of mind
128
It is possible to rely on the other parties lack of consent as a basis of annulment?
Yes
129
In which case was it determined that one of the parties was so overborne by genuine and reasonably held fear that the constraint destroyed the reality of their consent?
Szechter v. Szechter 1971
130
In which case was the physiological and emotional pressure by the girls family deemed sufficent to make the marriage void?
B v. I 2010
131
In which case was it determined the court would look at the impact of the threat rather than they kind of threat?
Hirani v. Hirani 1982
132
When must a mental disorder exist in order to make the marriage void?
Before the couple marry.
133
Does having a mental disorder nullify all marriages in relation to those with some form of disorder?
No, it only applies in cases where the disorder is severe.
134
In which case was the outcome from the court that the focus should be on the capacity of an individual to marry and not if they were wise to marry a particular person?
Sheffield CC v. E 2005
135
Who raises the ground of venereal disease?
The healthy party
136
In what case can pregnancy be applied as a ground for a voidable marriage?
When the person is pregnant by someone other than their husband
137
In which instances can a gender recognition certificate be used to make a marriage void?
When the applicant was unaware of the defendant ever having a sex change.
138
What is approbation?
The person knew they could have the marriage annulled but then behaved in a manner suggesting this would not be invoked.
139
What is the timescale for all grounds of a voidable marriage (excluding consummation)?
3 years
140
What is the timescale for approbation of a gender recognition certificate?
6 months
141
What must the court be satisfied of in order for the grounds of pregnancy, venereal disease and gender recognition certificate to be used?
That the applicant had no knowledge of the facts at the time of the marriage.
142
In Scotland how many grounds of voidable marriage are there?
1
143
In Scotland what are the 7 grounds that a marriage is void on?
1) Non-age
2) Forbidden Degrees of Relationship
3) Prior Subsisting Marriage
4) Mental Incapacity
5) Error
6) Duress
7) Defective Consent
144
What statute provides the basis of a void marriage through non age?
Marriage (Scotland) Act 1977 S.1(1)
145
What statute provides the basis of a void marriage through a forbidden relationship?
Marriage (Scotland) Act 1977 S.2(1)
146
Which statute would be used in order to find the grounds of void marriages through defective consent?
Marriage (Scotland) Act 1977 S.20A
147
In cases dealing with mental incapacity what burden is required to show the person did not understand the nature of marriage?
A heavy burden
148
In which case was the fraudulent misrepresentation (error) of one spouse to another through a pregnancy was it deemed that desertion must only be where it is grave and convincing?
Lang v. Lang 1955
149
In which case was it deemed that only giving 1 weeks notice of the wedding and the threat of disownment was enough to merit duress?
Sohrab v. Khan 2002
150
In Scotland a marriage can be voidable due to Incurable Impotency - what is this?
One spouse must be incapable of engaging in full sexual intercourse through physical or psychological reasons.
151
Are Incurable Impotency and Wilful refusal to comsumate the same thing?
No
152
If a spouse has knowledge of incurable impotency in Scotland will a person bar allow for the marriage to be made void?
No, you will not be able to obtain a declarator of nullity.
153
Where in England can the requirements of Eligibility for a civil partnership be found in the Statute book?
Civil Partnership Act 2004 S.3
154
In Scotland where can the requirements for eligibility be found for a civil partnership be found in the statute book?
Civil Partnership Act 2004 S.86
