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FAMILY: MARRIAGE ETC > NON-MARRAIGES, VOID/VOIDABLE MARRIAGES > Flashcards

NON-MARRAIGES, VOID/VOIDABLE MARRIAGES Flashcards

1
Q

Why is annulment important?

A

Defines what the law considers to be valid, who may marry and what the ‘essential ingredients’ of a marriage

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2
Q

What is the difference between nullity and divorce?

A
  • > Annulment recognises a fundamental flaw in the marriage, rendering as effectively never existing
  • > Divorce is ending a valid marriage for a specific reason
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3
Q

Difference between a void marriage and non-marriage?

A 
Void = very similar to a marriage, with some kind of flaw that prevents the law recognising it
Non = ceremony that took place nothing like a marriage, no legal consequence
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4
Q

Case for definition of non-marriage

A

DUKALI v LAMRANI 2012

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5
Q

Why is distinction between void and non marriages important?

A

The powers that the court has, in void marriages they have the power to redistribute property, in non they do not

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6
Q

Which case recommended factors to consider when deciding if non/void marriage?

A

HUDSON v LEIGH 2009

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7
Q

What are the 4 factors in Hudson v Leigh 2009?

A

1) Did ceremony purport to be a marriage?
2) Did it bear some/all hallmarks of being a marriage?
3) Were key participants (officiated particularly) under belief, intention and understanding it was a legal marriage?
4) Reasonable belief, perceptions and understandings of those in attendance

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8
Q

Was Hudson v Leigh 2009 a void or non marriage?

A

Non-marriage as it was intended to be so and had been altered so ceremony did not resemble a marriage ceremony

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9
Q

EL GAMAL v AL MAKTOUM 2011

A
  • Private Muslim ceremony in a private flat
  • Well short of required formalities and was no clear attempt to try to follow them
  • Non-marriage
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10
Q

GALLOWAY v GOLDSTEIN 2012

A
  • Couple legally married in USA got married again UK

- Non-marriage as they were already married they can’t possibly have intended to marry

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11
Q

What is the case for void marriage that heavily contrasts those for non-marriage?

A

GEREIS v YAGOUB 1997

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12
Q

Gerbils v YAGOUB 1997?

A
  • Couple had a purported marriage ceremony at their Coptic Orthodox Church, no legal formalities
  • Priest encouraged them to have a civil ceremony as well, but they didn’t
  • VOID marriage, although they had disregarded the formalities of the MARRIAGE ACT 1949, the ceremony had the hallmarks of marriage and the coupled saw and presented themselves as married
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13
Q

How could this approach towards ‘hallmarks of marriage’ be viewed as discriminatory?

A

Hallmarks is taken to mean those of a Christian marriage, several cases of non-Christian marriages being deemed non-marriages but left questions over whether that was appropriate

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14
Q

Cases where non-Christian marriages were perhaps deemed non-marriage due to different religion?

A

AM v AM 2001 -> Muslim private ceremony in flat

GAHNDI v PATEL 2002 -> Hindu wedding in a restaurant, as is common in India

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15
Q

What happens if couple intended to marry and are close to/didn’t realise departure from the formalities of MA 1949?

A

Then the marriage is deemed to be valid

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16
Q

Case for marriage being valid if parties thought/intended it to be and it’s not to far off the required formalities?

A

MA v JA 2012

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17
Q

MA v JA 2012

A
  • Wedding in a Mosque, found they had intention and belief they were entering a legal marriage
  • Imam knew marriage invalid, but didn’t tell them
  • Held that parties with intention, belief and proximity to required formalities in MA 1949, would be held married
  • Intention of officiator is irrelevant
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18
Q

Difference between void and voidable marriages?

A
  • > In law, void marriage never existed

- > Voidable marriages exist until annulled by a court if this never happens it remains valid

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19
Q

How many significant consequences exist due to difference between void and voidable marriage?

A

4

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20
Q

What are 4 consequence of difference between void/voidable marriages?

A

1) Void is still void without court deceleration, voidable is valid from start date until court order. Normally those who think marriage void will seek an order anyway to seek clarity ad potential further orders on finances etc
2) Child born in void marriage is technically illegitimate, not important anymore
3) Parties have different rights concerning the other’s pension
4) Anyone can seek declaration of void marriage, but only the spouses can seek annulment of a voidable marriage

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21
Q

Why is who can seek declaration of void or voidable marriages important?

A
  • > Void marriage has public policy element against the marriage, so anyone can seek a declaration of it
  • > Voidable marriages have nothing to do with public policy, only that there’s such issue with the marriage that one of the parties may seek its annulment
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22
Q

Where are grounds for a VOID marriage found in statute?

A

MATRIMONIAL CLAUSES ACT 1973

S11

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23
Q

MCA 1973, s11

A

(A) (i) Parties within prohibited degrees of relationship
(II) Either party under 16
(III) Parties have intermarried in in disregard of requirements
(B) At time of marriage either party was already married
(C) In polygamous marriage outside UK, any party still living in UK

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24
Q

In s11(a) MCA 1973, what is meant by prohibited degrees?

A
  • > Concerning being related, incest illegal in almost all global societies
  • > Justified by:
    1) Fear of genetic dangers in procreation of blood relatives
    2) Fear of undermining family security
    3) Widespread instinctive moral rejection
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25
Q

S11(a) MCA 1973, why is age relevant?

A
  • > Reflects criminal law age of consent (16)
  • > Concern for children of young parents/young parents themselves
  • > Ensuring parties understand consequences of marriage
  • > Under 18 need written consent, but can apply to court to negate this in some circumstances
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26
Q

In s11 (a) MCA 1973, what is meant by formalities??

A

The very complex rules centred around whether marriage took place in Church of England or not

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27
Q

What is the purpose of the formalities mentioned in s11(a) MCA 1973?

A

1) Drawing a lie between cohabitation, engagement and marriage
2) Prevents frivolous marriage, fulfilling requirements requires time and effort
3) Helps ensure formal records of marriage
4) Ensures people are able to object to marriages

28
Q

Where are the formalities found in statute?

A

Marriage Act 1949

29
Q

How did the Marriage Act 1995 alter the formalities of the 1949 Act?

A
  • > Allowed couples to get married in a wide receiver variety of places
  • > Due to concern couples were put of marriage due to onerous nature of the formalities
  • > If interpretation is too strict, could make many marriages invalid
30
Q

Where are grounds for VOIDABLE marriage found in statute?

A

S12 MCA 1973

31
Q

S12 MCA 1973

A

(A) Not consummated due to incapacity
(B) Not consummated due to refusal
(C) Either party did not give valid consent
(D) At time of marriage, although capable of valid consent, party was suffering from mental disorder within meaning of MCA 1973
(E) At time of marriage R had an STD
(F) At time of marriage R was pregnant by someone else

32
Q

What are the 4 accepted reasons for lack of valid consent?

A

1) Duress
2) Mistake
3) Unsoundness of mind
4) Otherwise

33
Q

What is accepted as duress negating valid consent?

A

HIRANI 1982

  • Suggests focus should b on effect of rather than nature of the threat
  • ‘Is such as to destroy the reality of the consent and overbear the will of the individual’, in this case ostracisation from her community was sufficient
34
Q

Case that contrasts approach in HIRANI 1982

A

SINGH 1971

35
Q

SINGH 1971

A
  • Couple had not met and agreed to get married out of respect for their parents
  • Held that it was out of a sense of duty, not fear that consent was give = still valid
36
Q

What is the Law Commission’s view on duress negating consent?

A
  • > It is the legitimacy of the threat that is important, not the lack of consent
  • > Only the threat itself should be considered a shaving an effect
37
Q

For duress to negate consent should the fear be reasonable or just honest?

A

SCOTT v SELBRIGHT 1886
- Honesty is enough, law should not punish a mistake by denying annulment
SZECHTER 1971
- Only a reasonable belief will be sufficient

Is mostly a subjective decision based on nature of the threat

38
Q

What are the 2 instances where the law will consider mistake as negating consent, making marriage voidable?

A

1) Mistake to identity of other party -> MOSS 1897

2) Mistake to the nature of the ceremony taking place -> VALIER 1925, thought it was an engagement ceremony not marriage

39
Q

What is the argument to changing the considerations for mistake negating valid consent?

A
  • > Since HIRANI 1982, the law should follow approach taken with duress
  • > That focus should be on effect rather than nature of mistake
40
Q

When is Unsoundness of mind enough to negate valid consent?

A
  • > Must be at time of marriage

- > Presumption is always of sound mind, so must be proved by the party claiming it

41
Q

Which case gives criteria for how unsound the mind must be?

A

IN THE ESTATE OF PARK 1954

42
Q

IN THE ESTATE OF PARK 1954, bar for unsoundness of mind is?

A
  • Capability of understanding nature of marriage contract
  • Capacity to comprehend responsibilities/rights/obligations attached to marriage
  • Without these cant be said they were of sound mind to enter marriage contract
43
Q

3 significant unsoundness of mind cases as well as IN THE ESTATE OF PATK 1954

A

SHEFFIELD CC v E&S 2004
X CITY COUNCIL v MB 2007
SANDWELL MBBC v RG 2013

44
Q

SHEFFIELD CC v E&S 2004

A
  • Emphasis on assumption of every adult having sound mind
  • Test is understanding consequences of marriage, not just that marriage is happening
  • Wether or not it is a good idea for person to get married not the court’s concern
  • Controversial as character of spouse not considered, particularly as in this case it was a potentially abuse man and a woman with learning difficulties
45
Q

X CITY COUNCIL v MB 2007

A
  • To have capacity to consent to marriage must have capacity to consent to sex
  • Increasingly questionable, as so much sex occurs outside of marriage
46
Q

SANDWELL MBC v RG 2013

A
  • H found to lack capacity to consent to marriage, inappropriate for his solicitor to petition for annulment as not in his best interests
  • He was fond of W and enjoyed spending time with her
  • Held that his inability to consent to sexual relations meant that W should be supervised to prevent it, held the court old consider it a criminal offence for her to sexually touch him
47
Q

What is meant by ‘otherwise’ in reasons for negating valid consent?

A

1) Drunkenness

2) Fraud/misrepresentation

48
Q

What approach has the court taken on drunkenness as grounds to invalidate consent?

A
  • > No clear authority but 2 main views:
    1) Drunkenness equivalent to unsound mind = voidable
    2) Drinking is self inflicted = not voidable
49
Q

Case for being drunk negating consent?

A

SULLIVAN 1812

50
Q

SULLIVAN 1812

A
  • Held that groom was so drunk that he couldn’t possibly understand nature of ceremony = voidable
51
Q

Court’s view on fraud/misrepresentation negating valid consent?

A
  • > Alone it’s not sufficient - SWIFT v KELLY 1835

- > Has to then result in mistake

52
Q

Are there bars on void/voidable marriage being annulled?

A

No bars on void marriages, don’t even require a declaration, but there are 3 potential bars on voidable marriages

53
Q

Statute for bars on voidable marriages?

A

S13(1) MCA 1973

54
Q

What are the 3 bars on annulment of voidable marriages?

A

1) Approbation (sanction)
2) Time
3) Estoppel

55
Q

When will approbation bar annulment?

A

When P had led R to reasonably believe they would not file for annulment
It would be unjust for the court to grant annulment
COURT MUST BE SATISFIED OF BOTH

56
Q

Case when approbation barred annulment?

A

D v D 1979

57
Q

D v D 1979

A
  • H was relying on W’s refusal to consummate the marriage in order to get annulment under s12 MCA 1973
  • However they had agreed to adopt a child together
  • Court was satisfied that this was sufficient to lead W to reasonably believe that he did not consider lack of consummation as reason to seek annulment
  • Court also satisfied it would be unjust to grant annulment = barred
58
Q

When will time act as a bar on annulment?

A

After 3 years since date of marriage, with 3 exceptions

59
Q

3 exceptions to the 3 year time limit on voidable marriages?

A

1) Mental health disorders (s13(2) MCA 1973)
2) Impotence
3) Court was alerted as soon as possible, but this was after 3 years

60
Q

Case for time limit being passed on a voidable marriage?

A

B v I (Forced Marriage) 2010

61
Q

B v I (Forced Marriage) 2010

A
  • 16 y/o girl only able to alert authorities of forced marriage after 3 years due to fearing her life
  • Court could not declare nullity as marriage wasn’t in UK
  • Did however refuse to recognise it under UK law, which was significant as a divorce would’ve seen her shunned by the community she lived in
62
Q

What are the 2 forms of ESTOPPEL that will act as a bar on annulment of voidable marriages?

A

1) Conduct, such that it would be unjust to deny facts one party led the other to believe
2) Per rem judicatum = party can’t seek to overturn a previous court ruling

63
Q

Case for estoppel by conduct as bar on annulment

A

MILES v CHILTON 1849

64
Q

Miles v Chilton 1849

A
  • H sought annulment on grounds W was already married
  • This was true, but H had led W to reasonably believe her divorce had gone through
  • Court held that this was not an answer to H problem, as in finding the true state of affairs they would have to disregard W being led to believe she was divorced
  • This was deemed unjust, so the annulment was estopped
65
Q

Example of estoppel per rem judicatum

A

-> If annulment has been granted on whatever basis, no one can intervene to try and overturn it after the order has been given

66
Q

Statutory provision for effect of a decree of nullity?

A

S16 MCA 1973

67
Q

What is the effect of a degree of nullity?

A
  • > Voidable marriage treated as existing from point of marriage until point decree given
  • > Once decree issued, marriage didn’t exist
  • > Differs from divorce, where marriage has ended for whatever reason, but still exists

FAMILY: MARRIAGE ETC (8 decks)

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