nullity Flashcards
Does nullity predate divorce?
Yes
Which is more common- nullity or divorce?
Divorce
What are the statistics for divorce and nullity in 2011
345-nullity, 129,298- divorce
Is the law for nullity restrictive?
Yes
What is the law for nullity
Matrimonial Causes Act 1973(Marriages) and Civil Partnership Act 2004 (Civil Partnerships)
What is the difference between nullity and divorce?
Divorce is a broken down marriage, Nullity is not a valid marriage
Reasons why nullity still exsists
It provides guidance on what makes a marriage valid, divorce is not acceptable to everyone. religious reasons. forced marriage
Report for should nullity be retained?
Law commission no 33 1970
Why should nullity be retained?
Stigma attached to divorce, Time petition is longer for divorce than annullment
Legal annullment
no need for a divorce, annulled under the Matrimonial Causes act 1973 and civil partnership 2004
Religious annullment
no need to meet legal requirement. must divorce
what does void marriage mean?
never valid
what does voidable mean?
valid until avoided
Void marriage definition
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
Which case did the void definition come from
reneville v de reneville 1948
What is a non-marriage?
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
What is need in a void marriage?
Do not need a decree, third parties can challenge validity, can marry another without having current marriage annulled.
When is a decree possible in a void marriage?
after death
What is needed in voidable marriage?
decree necessary, third parties cannot challenge
When is a decree possible in voidable marriage?
not possible after death, if die before the decree then marriage remains valid
What section is the grounds for a void marriage found under?
S11 MCA 1973
What are the grounds for a void marriage?
Prohibited degrees, age under 16 (need consent between 16 and 18 but marriage still valid), formalities
What section is the grounds for a voidable marriage found under?
S12 MCA 1973
What are the grounds for a voidable marriage?
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
What falls under incapacity?
Consummation
What does consummation do?
Distinguishes marriage from friendship, encourages reproduction and used to be important on religious grounds.
Who can petition under incapacity
Either party (harthan 1949), prevents adulterous relationships
What is the meaning of consummation?
sexual intercourse and penetration so only applies to hetrosexuals
What is not relevant in consummation?
orgasms, infertility, contraception, intercourse prior to marriage, lack of attention or dislike is not enough
Can you petition on your own wilful refusal?
No
What is relevant in wilful refusal?
History (ford 1987)
What is a companionship marriage?
Agree not to consummate
What happens if young couple in companionship marriage?
Able to annul for non-consumation
What happens if its a sham marriage?
it still remains valid, once marriage is consummated it cannot be avoided
What are the 4 circumstances that falls under lack of consent?
Duress, Mistake, Unsoundness of mind and or otherwise
Duress(consent) Cases
Szechter 1971, Hirani 1982
Definition of Duress-Hirani 1982
‘the threat or pressure such as to overbear the will of the individual petitioner so as to destroy the reality of consent’
What must there be in duress?
evidence of threat or fear
Are financial remedies available under duress?
No
Who was the forced marriage unit set up by?
Home office and foreign and commonwealth office
What act provides civil remedies for forced marriage?
Forced marriage(civil protection) act 2007
What is the act that introduced forced marriage as an offence?
Antisocial behaviour, crime and policing act 2014
What falls under mistake?
nature of ceremony or identity of other party. no other types would count
Would mistake of attributes count ?
No
Mistake of ceremony case
Mehta 1945- wife though the ceremony was conversion to hinduism not marriage
Mistake of identity case
c v c 1942- wife thought husband was famous boxer, decree not allowed, this was an attribute and not identity
Where must unsoundness of mind exist?
at the date of marriage
Estate of park 1954
whether the person is capable of understanding the nature of the contract to which they are entering into
Sheffield city council v E and S 2004
Don’t need to understand what they are getting into, must understand the nature of the duties and responsibilities attached to marrriage
What falls under otherwise (consent)
could be one party unaware of facts or circumstances surrounding another, drink/drugs,
What act does mental disorder definition come from
s1(2) mental health act 1983
What is the definition for mental disorder
mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind
What must it make married life?
impossible- bennett v bennett 1969
What are the requirements for VD
must be suffering at the time of marriage, petitioner must be ignorant of this
Requirements of pregnancy per alium
petitioner must not be aware, must petition within 3 years of marriage
What section does interim gender recognition fall under?
s12(g) Gender Recognition Act 2004
When does it have to be issued? (gender recognition certificate)
after the time of the marriage. if unaware at the time of the marriage then it may be voidable
When can either party apply (gender recognition)
within 6 months of marriage
What falls under protected marriage?
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.
What section does bars to decree of nullity fall under?
S13 MCA 1973
What is the aim of bars to decree of nullity
To Prevent injustice
What type of marriage does bars to decree of nullity apply to?
Voidable marriages
Cases for bars to decree of nullity
D v D 1979
D v D 1979
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
s13(2) MCA 1973
claims under c,d,e,f must be brought within 3 years
S13(2a)
GRC, brought within 6 months
S13(3)
no claims under e or f unless petitioner ignorant of the fact at the time of marriage
What section will civil partnerships be void under
S49 CPA 2004
what are the reasons to be void under CPA
not of the same sex, already married/civil partnership, under 16, prohibited degrees, formalities not complied with
What section will civil partnerships be voidable under
S50 CPA 2004
what are the reasons to be voidable under CPA
did not validily consent, mental health disorder, pregnant per alium, GRC, respondent is a person whose gender has become the acquired gender.
Can non consummation and VD be grounds under civil partnerships
No
What act is annulment of same sex marriage under?
MCA 1973
What are the grounds for annulment?
Same as civil partnerships
