Marriages (Incl: Same-sex, consequences etc.) Flashcards
[Essay history] What case was the traditional definition of marriages found and what changes have occurred since then
- Traditional: [Hyde v Hyde] “voluntary union for man and woman”.
- presumption for procreation
• Changes:
- Marriages (Same Sex) Act 2013
- Divorce and legislation for other religious marriages
- Co-habitation
- Non-marriage
What are some key regulations in marriage law?
Marriage
• Marriage Act 1949 (deals with capacity, formalities, and nullity of marriage)
• ECHR Art 8 and 12 (right to marry)
What are ECHR art 8 and 12?
Art 8: right to respect home and family life
Art 12: men and women of marriageable age have right to marry and found a family.
Limit age spouse could apply to sponsor their spouse for marriage visa
- to prevent forced marriage
- protected from pressure to marry + sponsor
R (Quila) v SSHD [2011]
- SC 4-1: refusal to grant marriage visa was infringement of art 8 rights
- L Wilson considered it colossal interference
- Although legit aim, efficacy is highly debatable= not justified.
Who has the capacity to get married?
[Marriage Act ‘49]
Age: (ss2,3) 16-18 must have consent.
Prohibited: Sch1
• Close relatives (consanguinity) [B and L v UK]
• Polygamy [MCA 11B, Offences Against Person Act s57]
What are the key gay marriage regulations?
Gay Marriage
• Marriage (Same Sex) Act 2013 (gay stuff)
• Civil Partnership Act 2004
• Adoption and children act 2002 (allowed gay stuff)
What are the key regulations relating to property consequences of marriages?
Property consequences
•Matrimonial Causes Act 1973
• Inheritance Family and Provisions Act 1975 (challenging wills)
• States Act 1982 (divorce=dead)
What are the key regulations relating to personal consequences of marriage
Personal Consequences
• s47 Criminal Justice Act 1925
• Martial Woman’s Property Act 1882
ECtHR prohibits marriage between parents in law and children in law .
Violates art 12 echr.
B and L v UK
What are the requirements of an Anglican Marriage?
Pt II MA’49
- Preliminaries (s5 MA) + Decide which licence (special or common)
Common licence- 15 days residence / baptised
Special licence - unable to fulfil above
- Solemnisation
Note: no gays. [s12(2), 16(3), 33]
What are the requirements for a civil marriage?
- Preliminaries (Pt 3 MA) + Choose certificate or licence.
Cert - marriage book open to public for 3 moths
Licences - Speeds things if cannot last 3 months
- Solemnisation
s44/45 - building/ office
s46(b) - approved premises
If you are jewish/quaker, what section of the marriage act do you look for
s26(1)(c)(d)
• no need for approved place/person
If you are not jewish/quaker/christian and want to get married religiously what is the protocol?
Marriage Act
s41/42 - any building certified as place of religious worship + can be registered by registrar general for solemnisation
s44- needs presence of registrar of marriage/ authorised person.
*if these are not fulfilled, court may still consider granting marriage if all intentions are present. [Hudson v Leigh]
What case and test established what courts consider when deciding a marriage/non-marriage?
*Held: marriage was not non-marriage at the end.
[Hudson v Leigh]
Bodey J.
By a case-by-case basis, not exhaustively:
a) Whether the ceremony or event set out or purported to be a lawful marriage;
(b) Whether it bore all or enough of the hallmarks of marriage;
(c) Whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
(d) The reasonable perceptions, understandings and beliefs of those in attendance
[Case] When a ceremony ‘gave all appearance and had the hallmarks of a marriage’
Gereis v Yagoub
[Case] A non-marriage is when the “Act would not have any relevance when ‘a ceremony… is not and does not purport to be a marriage of the kind allowed by English domestic law’”
R v Bham
[Case] Hindu ceremony performed by restaurant was only a non-marriage
Gandhi v Patel
[Case] which confirmed that non-marriages exist.
MA v JA
Molyan J– well established line of authority that certain ceremonies would not suffice even to create a void of marriage
[Rule] Long co-habitation being used for inference of an existing marriage (used in A-M v A-M)
Halsburry’s Laws of England vol 29.3
- ‘Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, though there may be no positive evidence of any marriage having taken place, particularly where the relevant facts have occurred outside the jurisdiction;
presumption can be rebutted only by strong and weighty evidence to the contrary.’
[Case]
Held: Divorce ineffective bc neither party was domiciled, habitually resided in, or residents of UAE. Poly not recognised in UK = marriage invalid.
A-M v A-M
2 Islamic ceremonies in UK and in UAE.
H was in poly marriage, went to divorce in UAE and remarry wife again.
What are some criticisms to the “non-marriage Bodey” Test
Vague Hallmarks -
Bodey acknowledged dubious utility ‘[r]eliance on the “hallmarks of marriage” alone may not in all circumstances be a satisfactory test.’
[Burns v Burns]
[Gereis v Yagouh]
Certain intentions?
Bodey – difficult and unreliable to ascertain intentions and beliefs. Could believe diff things.
[Case] Hallmarks of a marriage reception include a photographer, marquee and disco.
Burns v Burns – Coleridge J
[Case] Hallmarks of a christian marriage -> bride and groom had not lived together before ceremony and regarded it as start of life together.
Gereis v Yagouh
[Case] intention of the parties will trump the reasonable perceptions of those present – at least where it is an intention not to be bound by the ceremony
[Hudson v Leigh]
Parties intention: D + P had not intended to be married by the religious ceremony (South Africa) bc they were planning to marry civil ceremony (England)
Public perception: watching DVD would infer that this is legit marriage.
[Case] More reach than Hudson v Leigh, they did everything right but it was only the intention that rendered it a non-marriage.
Galloway v Goldstein
Already married in US, didn’t intend to marry civilly in UK.
[Case] Proper Ceremony > Proper intention
Dukali v Lamrani
Form prioritised over intention
• made no attempt to comply w English law req.
• union bore “lives truly started together” [Gereis v Yagoub]
• Holman J: didn’t follow MA= invalid marriage.
[Case] Essential processes to creating a marriage.
MA v JA
• Moylan J: if MA says that failing to do these = not a marriage, it does not create a “non-marriage”.
What was the case that brought attention to gender recognition issues and the following statute resulting?
[Goodwin v UK]
Gender Recognition Act 2004
[Case] Court held to interpret the statute as “if a husband and wife” to include gay people.
[Gaiden v Goodwin Mendoza]
[Act] What act allowed same-sex couples to first be legally recognised in Law? (hint: not marriage)
[Civil Partnership Act 2004]
- Adultery must be w someone of diff legal gender
[Case] Are straight people discriminated by not being able to civil partners?
[Ratzenbock v Seydl]
ECHR: not enough. Wasn’t unlawful discrimination of sexual orientation.
bc they can marry = not purpose of civil partnership.
