Marriages (Incl: Same-sex, consequences etc.)

Question 1

[Essay history] What case was the traditional definition of marriages found and what changes have occurred since then

Answer 1

• Traditional: [Hyde v Hyde] “voluntary union for man and woman”.
• presumption for procreation

• Changes:

1. Marriages (Same Sex) Act 2013
2. Divorce and legislation for other religious marriages
3. Co-habitation
4. Non-marriage

Question 2

What are some key regulations in marriage law?

Answer 2

Marriage
• Marriage Act 1949 (deals with capacity, formalities, and nullity of marriage)
• ECHR Art 8 and 12 (right to marry)

Question 3

What are ECHR art 8 and 12?

Answer 3

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.

Question 4

Limit age spouse could apply to sponsor their spouse for marriage visa

• to prevent forced marriage
• protected from pressure to marry + sponsor

Answer 4

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.

Question 5

Who has the capacity to get married?

Answer 5

[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]

Question 6

What are the key gay marriage regulations?

Answer 6

Gay Marriage
• Marriage (Same Sex) Act 2013 (gay stuff)
• Civil Partnership Act 2004
• Adoption and children act 2002 (allowed gay stuff)

Question 7

What are the key regulations relating to property consequences of marriages?

Answer 7

Property consequences
•Matrimonial Causes Act 1973
• Inheritance Family and Provisions Act 1975 (challenging wills)
• States Act 1982 (divorce=dead)

Question 8

What are the key regulations relating to personal consequences of marriage

Answer 8

Personal Consequences
• s47 Criminal Justice Act 1925
• Martial Woman’s Property Act 1882

Question 9

ECtHR prohibits marriage between parents in law and children in law .

Violates art 12 echr.

Answer 9

B and L v UK

Question 10

What are the requirements of an Anglican Marriage?

Answer 10

Pt II MA’49

1. Preliminaries (s5 MA) + Decide which licence (special or common)

Common licence- 15 days residence / baptised
Special licence - unable to fulfil above

2. Solemnisation

Note: no gays. [s12(2), 16(3), 33]

Question 11

What are the requirements for a civil marriage?

Answer 11

1. 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

2. Solemnisation
   s44/45 - building/ office
   s46(b) - approved premises

Question 12

If you are jewish/quaker, what section of the marriage act do you look for

Answer 12

s26(1)(c)(d)

• no need for approved place/person

Question 13

If you are not jewish/quaker/christian and want to get married religiously what is the protocol?

Answer 13

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]

Question 14

What case and test established what courts consider when deciding a marriage/non-marriage?

*Held: marriage was not non-marriage at the end.

Answer 14

[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

Question 15

[Case] When a ceremony ‘gave all appearance and had the hallmarks of a marriage’

Answer 15

Gereis v Yagoub

Question 16

[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’”

Answer 16

R v Bham

Question 17

[Case] Hindu ceremony performed by restaurant was only a non-marriage

Answer 17

Gandhi v Patel

Question 18

[Case] which confirmed that non-marriages exist.

Answer 18

MA v JA

Molyan J– well established line of authority that certain ceremonies would not suffice even to create a void of marriage

Question 19

[Rule] Long co-habitation being used for inference of an existing marriage (used in A-M v A-M)

Answer 19

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.’

Question 20

[Case]

Held: Divorce ineffective bc neither party was domiciled, habitually resided in, or residents of UAE. Poly not recognised in UK = marriage invalid.

Answer 20

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.

Question 21

What are some criticisms to the “non-marriage Bodey” Test

Answer 21

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.

Question 22

[Case] Hallmarks of a marriage reception include a photographer, marquee and disco.

Answer 22

Burns v Burns – Coleridge J

Question 23

[Case] Hallmarks of a christian marriage -> bride and groom had not lived together before ceremony and regarded it as start of life together.

Answer 23

Gereis v Yagouh

Question 24

[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

Answer 24

[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.

Question 25

[Case] More reach than Hudson v Leigh, they did everything right but it was only the intention that rendered it a non-marriage.

Answer 25

Galloway v Goldstein

Already married in US, didn’t intend to marry civilly in UK.

Question 26

[Case] Proper Ceremony > Proper intention

Answer 26

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.

Question 27

[Case] Essential processes to creating a marriage.

Answer 27

MA v JA

• Moylan J: if MA says that failing to do these = not a marriage, it does not create a “non-marriage”.

Question 28

What was the case that brought attention to gender recognition issues and the following statute resulting?

Answer 28

[Goodwin v UK]

Gender Recognition Act 2004

Question 29

[Case] Court held to interpret the statute as “if a husband and wife” to include gay people.

Answer 29

[Gaiden v Goodwin Mendoza]

Question 30

[Act] What act allowed same-sex couples to first be legally recognised in Law? (hint: not marriage)

Answer 30

[Civil Partnership Act 2004]

• Adultery must be w someone of diff legal gender

Question 31

[Case] Are straight people discriminated by not being able to civil partners?

Answer 31

[Ratzenbock v Seydl]

ECHR: not enough. Wasn’t unlawful discrimination of sexual orientation.

bc they can marry = not purpose of civil partnership.