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Family Law > Nullity > Flashcards

Nullity Flashcards

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1
Q

Why is divorce more popular than nullity?

A

The grounds for annulment are quite restrictive

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2
Q

What is the difference between divorce and annulment?

A

Annulled: not a valid marriage
Divorce: valid marriage but parties decide to end their relationship

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3
Q

What is the importance of nullity now?

A

Provides guidance on what constitutes a valid marriage

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4
Q

Where is the law on nullity contained?

A

Matrimonial Causes Act 1973

Civil Partnership Act 2004

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5
Q

When was the law reviewed and by who?

A

1970 by the Law Commission

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6
Q

What did the Law Commission find when they reviewed the law?

A

They thought the law should be retained for 3 reasons:

  1. Distinction between divorce and annulment
  2. Stigma attached to divorce
  3. Time period for divorce longer than annulment
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7
Q

What is the difference between an void and voidable marriage?

A

Void: never a valid marriage
Voidable: valid until voided

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8
Q

Do non-marriages have have any legal consequences?

A

No

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9
Q

Can financial awards be awarded to parties after a non-marriage?

A

Cannot be made to either party

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10
Q

How is it decided if there is a non-marriage?

A

Decided on a case by case basis. It is totally a judicial concept

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11
Q

What factors are present in a non-marriage as stated in Hudson v Leigh [2009]?

A
  1. Did it purport to be a lawful marriage?
  2. Did it have the hallmarks of a marriage?
  3. Did the participants believe it to be lawful
  4. What did those in attendance believe?
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12
Q

Is a decree required for a void marriage?

A

No decree needed but having one resolves uncertainty

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13
Q

What are the 4 key elements of a void marriage?

A
  1. Third party can challenge the validity of marriage
  2. No defences to annulment
  3. You can marry another without having a current marriage annulled
  4. Decree possible after death
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14
Q

What are the 3 key elements of a voidable marriage?

A
  1. Decree is necessary
  2. Third parties cannot challenge
  3. Decree not possible after death
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15
Q

What are the 5 grounds for a void marriage?

A
  1. Prohibited degrees of relationship
  2. Under 16
  3. Formalities not complied with
  4. Already married
  5. Polygamous marriage
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16
Q

What happened in the case of Alhaji Mohammed v Knott [1968]?

A

Couple were domiciled to Nigeria. Wife was 13 when married in Nigeria where marriage was legal. It was still valid in this country.

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17
Q

What happened in the case of Pugh v Pugh [1951]?

A

Marriage took place in Austria between 15 year old Hungarian girl and British domiciled man. The marriage was valid in Austria however not in this country due to the man being domiciled in Britain.

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18
Q

What happened in the case of Gereis v Yacoub [1997]?

A

Couple married in a church in London however the church was not registered for marriages. They were advise to get a civil ceremony too. Held that it was a void marriage as the couple had treated the relationship like a marriage and he had claimed a married man’s allowance.

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19
Q

What are the 8 grounds for voidable marriages?

A
  1. Incapacity of either party
  2. Wilful refusal of respondent
  3. No consent due to duress, mistake or unsoundness of mind
  4. Suffering from Mental Health Disorder
  5. Respondent suffering from VD
  6. Respondent pregnant by another
  7. Interim gender recognition certificate granted
  8. Respondent has become of the acquired gender
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20
Q

What happened in the case of Harthan v Harthan?

A

Either party can petition for incapacity

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21
Q

Where is consummation defined?

A

D v A [1848]

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22
Q

What did D v A define consummation as?

A

Full sexual intercourse, it must be ‘ordinary and trust’.

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23
Q

Is an orgasm, infertility or contraceptives relevant?

A

None is necessary or relevant

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24
Q

Describe the case of Baxter v Baxter [1948].

A

Wife insisted husband wore a condom, marriage could not be annulled on grounds of non-consummation.

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25
Q

Does intercourse before marriage count as consummation?

A

No as said in Boggins

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26
Q

Does the incapacity have to be permanent or can it be temporary?

A

Must in incurable. This can include if the treatment is dangerous or respondent refuses it.

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27
Q

What happened in the case of Singh v Singh?

A

Sikh woman had an arranged marriage, refused intercourse as she did not want to be married. Petition on grounds of incapacity failed as there was no ‘invincible repugnance’.

28
Q

Can you petition your own wilful refusal?

A

No

29
Q

What was said about wilful refusal in Horton [1947]?

A

It is ‘a settled and definite decision come to without just excuse’ and ‘the whole history of the marriage must be looked at’

30
Q

What were the facts in the case of Horton?

A

Wife was reluctant to have intercourse and sought advise from her parents and a priest. No wilful refusal in this case as she was trying to overcome the problem.

31
Q

What happened in the case of Ford v Ford (1987)?

A

Couple married when husband was in prison. He refused intercourse when wife visited. On a hime visit he went to a former girlfriends house and told wife he did not want to live with her when he was released. Grounds for wilful refusal.

32
Q

What happened in the case of Kaur v Singh [1972]?

A

Sikh couple had civil ceremony at register office. They could not live together and consummate until after religious ceremony. Annulment granted on the grounds of the wife wilful refusal.

33
Q

When will a companionship marriage be valid?

A

It will depend on the facts

34
Q

What happened in the case of Brodie v Brodie [1917]?

A

Young couple married as she was pregnant but they did not intend to live together as a married couple. Petition on the grounds of non-consummation granted.

35
Q

What happened in the case of Morgan v Morgan?

A

Couple aged 72 and 59 agreed to a companionship marriage. Held the agreement was sufficient not to have to consummate. There was no annulment.

36
Q

What happened in the case of Scott v Scott?

A

Couple aged 43 and 40 agreed to companionship marriage as wife had aversion to sex. Husband hoped she would change her mind however she did not. There was no annulment as he knew she did not want to have sex before they got married.

37
Q

Are sham marriages valid marriages?

A

Yes

38
Q

What happened in Vervaeke v Smith?

A

The aim of the marriage was to avoid deportation so it was held the marriage was valid.

39
Q

Under what circumstance will consent not be valid?

A

Duress, mistake, unsoundness of mind etc

40
Q

What was the test established to Szechter v Szechter [1971]?

A

‘A threat of immediate danger to life limb or liberty’

Objective and very strict.

41
Q

What happened in the case of Szechter v Szechter?

A

Husband divorced wife to marry polish woman so she could escape prison and possible death in Poland. In this country the marriage was annulled on grounds of mistake due to duress.

42
Q

Would the Szechter test cover forced marriage?

A

No

43
Q

What is the test established in Hirani v Hirani [1982]?

A

‘Is the threat or pressure such as to overbear the will of the individual petitioner so as to destroy the reality of consent.’

44
Q

What are the facts in the Hirani case?

A

Hindu woman told that if she did not marry a Hindu man the family had selected she would be outcast from community. She married him but left 6 weeks later. Decree was granted.

45
Q

What are the facts in the case of P v R (Forced Marriage: Annulment Procedure) [2003]?

A

Petitioner in Pakistan attending a funeral was forced to marry her cousin. She was threatened with violence. She signed marriage certificate out of fear and not consent.

46
Q

What are the issues with non-marriage?

A

No financial remedies available and any children would be illegitimate.

47
Q

What legislation provides civil remedies?

A

Forced Marriage (Civil Protection) Act 2007

48
Q

What is the importance of the Anti-Social Behaviour, Crime and Policing Act 2014?

A

Introduces offence of forced marriage

49
Q

What must the mistake be of?

A

Must be nature of ceremony or identity of the other party.

50
Q

Does mistake to someones attributes count?

A

No

51
Q

What happened in Mehta v Mehta?

A

Wife thought that ceremony of conversion to Hinduism and marriage was just a ceremony of conversion. Decree was allowed.

52
Q

What happened in the case of C v C?

A

Wife thought husband was a famous boxer. Decree was not allowed as this was an attribute not identity.

53
Q

What happened in the case of Militante v Ogunwomo?

A

Petitioner believed respondent to be someone else. Decree allowed.

54
Q

What are the requirements of unsoundness of mind?

A

Must exist at date of marriage

55
Q

What is the case of Estate of Park [1954]?

A

Man married younger woman. Relatives said he lacked mental capacity however a decree was not allowed as he knew what he was doing.

56
Q

What happened in the case of Sheffield City Council v E and S?

A

No need to understand you are getting married, but must understand the nature and duties of marriage.

57
Q

Where is a mental disorder defined?

A

s1(2) Mental Health Act 1983

58
Q

What is a mental disorder defined as?

A

‘Mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind.

59
Q

What happened in the case of Bennett v Bennett?

A

Wife had violent outbursts and found it difficult to be married but not impossible. Decree not allowed.

60
Q

What is the difference between mental disorder and unsoundness of mind?

A

Mental disorder: understands nature of marriage but cannot perform duties due to illness
Unsoundness of mind: no need to understand they are getting married but can perform duties.

61
Q

When can a party apply for a decree after a gender recognition certificate issued?

A

Can apply after 6 months of grant of certificate.

62
Q

Under what legislation can civil partnerships be void?

A

s49 Civil Partnership Act 2004

63
Q

What are the 5 reasons a civil partnership could be void?

A
  1. Parties not of the same sex
  2. Already married or in civil partnership
  3. Either party under 16
  4. In prohibited degrees of relationship
  5. Formalities have not been complied with
64
Q

Under what legislation can civil partnerships be voidable?

A

s50 Civil Partnership Act 2004

65
Q

What are the 5 reasons a civil partnership could be voidable?

A
  1. No consent due to duress, mistake, unsoundness of mind etc
  2. Suffering from Mental Health Disorder
  3. Respondent pregnant by another
  4. Interim Gender recognition certificate granted
  5. The respondent is a person whose gender has become an acquired gender.

Family Law (5 decks)

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