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Family Law > nullity > Flashcards

nullity Flashcards

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1
Q

Does nullity predate divorce?

A

Yes

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2
Q

Which is more common- nullity or divorce?

A

Divorce

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3
Q

What are the statistics for divorce and nullity in 2011

A

345-nullity, 129,298- divorce

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4
Q

Is the law for nullity restrictive?

A

Yes

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5
Q

What is the law for nullity

A

Matrimonial Causes Act 1973(Marriages) and Civil Partnership Act 2004 (Civil Partnerships)

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6
Q

What is the difference between nullity and divorce?

A

Divorce is a broken down marriage, Nullity is not a valid marriage

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7
Q

Reasons why nullity still exsists

A

It provides guidance on what makes a marriage valid, divorce is not acceptable to everyone. religious reasons. forced marriage

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8
Q

Report for should nullity be retained?

A

Law commission no 33 1970

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9
Q

Why should nullity be retained?

A

Stigma attached to divorce, Time petition is longer for divorce than annullment

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10
Q

Legal annullment

A

no need for a divorce, annulled under the Matrimonial Causes act 1973 and civil partnership 2004

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11
Q

Religious annullment

A

no need to meet legal requirement. must divorce

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12
Q

what does void marriage mean?

A

never valid

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13
Q

what does voidable mean?

A

valid until avoided

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14
Q

Void marriage definition

A

is one that will be regarded as never having taken place. can be treated by both parties to it without the necessity of any decree annulling it

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15
Q

Which case did the void definition come from

A

reneville v de reneville 1948

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16
Q

What is a non-marriage?

A

They have no legal consequence and financial awards cannot be made to either party e.g. maintenance. Law is decided on case by case basis

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17
Q

What is need in a void marriage?

A

Do not need a decree, third parties can challenge validity, can marry another without having current marriage annulled.

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18
Q

When is a decree possible in a void marriage?

A

after death

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19
Q

What is needed in voidable marriage?

A

decree necessary, third parties cannot challenge

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20
Q

When is a decree possible in voidable marriage?

A

not possible after death, if die before the decree then marriage remains valid

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21
Q

What section is the grounds for a void marriage found under?

A

S11 MCA 1973

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22
Q

What are the grounds for a void marriage?

A

Prohibited degrees, age under 16 (need consent between 16 and 18 but marriage still valid), formalities

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23
Q

What section is the grounds for a voidable marriage found under?

A

S12 MCA 1973

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24
Q

What are the grounds for a voidable marriage?

A

Incapacity of either party(hetrosexuals), wilful refusal(hetrosexual), no consent due to duress/mistake, mental health disorder, VD, pregnant by another, interim gender recognition certificate issued

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25
Q

What falls under incapacity?

A

Consummation

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26
Q

What does consummation do?

A

Distinguishes marriage from friendship, encourages reproduction and used to be important on religious grounds.

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27
Q

Who can petition under incapacity

A

Either party (harthan 1949), prevents adulterous relationships

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28
Q

What is the meaning of consummation?

A

sexual intercourse and penetration so only applies to hetrosexuals

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29
Q

What is not relevant in consummation?

A

orgasms, infertility, contraception, intercourse prior to marriage, lack of attention or dislike is not enough

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30
Q

Can you petition on your own wilful refusal?

A

No

31
Q

What is relevant in wilful refusal?

A

History (ford 1987)

32
Q

What is a companionship marriage?

A

Agree not to consummate

33
Q

What happens if young couple in companionship marriage?

A

Able to annul for non-consumation

34
Q

What happens if its a sham marriage?

A

it still remains valid, once marriage is consummated it cannot be avoided

35
Q

What are the 4 circumstances that falls under lack of consent?

A

Duress, Mistake, Unsoundness of mind and or otherwise

36
Q

Duress(consent) Cases

A

Szechter 1971, Hirani 1982

37
Q

Definition of Duress-Hirani 1982

A

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

38
Q

What must there be in duress?

A

evidence of threat or fear

39
Q

Are financial remedies available under duress?

A

No

40
Q

Who was the forced marriage unit set up by?

A

Home office and foreign and commonwealth office

41
Q

What act provides civil remedies for forced marriage?

A

Forced marriage(civil protection) act 2007

42
Q

What is the act that introduced forced marriage as an offence?

A

Antisocial behaviour, crime and policing act 2014

43
Q

What falls under mistake?

A

nature of ceremony or identity of other party. no other types would count

44
Q

Would mistake of attributes count ?

A

No

45
Q

Mistake of ceremony case

A

Mehta 1945- wife though the ceremony was conversion to hinduism not marriage

46
Q

Mistake of identity case

A

c v c 1942- wife thought husband was famous boxer, decree not allowed, this was an attribute and not identity

47
Q

Where must unsoundness of mind exist?

A

at the date of marriage

48
Q

Estate of park 1954

A

whether the person is capable of understanding the nature of the contract to which they are entering into

49
Q

Sheffield city council v E and S 2004

A

Don’t need to understand what they are getting into, must understand the nature of the duties and responsibilities attached to marrriage

50
Q

What falls under otherwise (consent)

A

could be one party unaware of facts or circumstances surrounding another, drink/drugs,

51
Q

What act does mental disorder definition come from

A

s1(2) mental health act 1983

52
Q

What is the definition for mental disorder

A

mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind

53
Q

What must it make married life?

A

impossible- bennett v bennett 1969

54
Q

What are the requirements for VD

A

must be suffering at the time of marriage, petitioner must be ignorant of this

55
Q

Requirements of pregnancy per alium

A

petitioner must not be aware, must petition within 3 years of marriage

56
Q

What section does interim gender recognition fall under?

A

s12(g) Gender Recognition Act 2004

57
Q

When does it have to be issued? (gender recognition certificate)

A

after the time of the marriage. if unaware at the time of the marriage then it may be voidable

58
Q

When can either party apply (gender recognition)

A

within 6 months of marriage

59
Q

What falls under protected marriage?

A

couple can remain married after GRC but if they are civil partners then they can only continue if both choose to and both change their sex.

60
Q

What section does bars to decree of nullity fall under?

A

S13 MCA 1973

61
Q

What is the aim of bars to decree of nullity

A

To Prevent injustice

62
Q

What type of marriage does bars to decree of nullity apply to?

A

Voidable marriages

63
Q

Cases for bars to decree of nullity

A

D v D 1979

64
Q

D v D 1979

A

wife refused to consummate. H petitioned on wilful refusal. during marriage he adopted children indiciating marriage to continue. wife also wanted marriage to end so decree granted

65
Q

s13(2) MCA 1973

A

claims under c,d,e,f must be brought within 3 years

66
Q

S13(2a)

A

GRC, brought within 6 months

67
Q

S13(3)

A

no claims under e or f unless petitioner ignorant of the fact at the time of marriage

68
Q

What section will civil partnerships be void under

A

S49 CPA 2004

69
Q

what are the reasons to be void under CPA

A

not of the same sex, already married/civil partnership, under 16, prohibited degrees, formalities not complied with

70
Q

What section will civil partnerships be voidable under

A

S50 CPA 2004

71
Q

what are the reasons to be voidable under CPA

A

did not validily consent, mental health disorder, pregnant per alium, GRC, respondent is a person whose gender has become the acquired gender.

72
Q

Can non consummation and VD be grounds under civil partnerships

A

No

73
Q

What act is annulment of same sex marriage under?

A

MCA 1973

74
Q

What are the grounds for annulment?

A

Same as civil partnerships

Family Law (7 decks)

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