S 12(1)(c) consent/duress Flashcards
What is necessary to create a valid marriage/CP
consent
Why has there been uncertainty as tp duress
two competing CA authorities. CA bound by their past decisions and there is a conflict of authority as to the correct approach. Therefore, until resolved we do not know which reflects the current law
What is the objective test
Szechter v Szechter, the test of duress was whether there was a “genuine and reasonably held fear caused by threat of immediate danger… to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock”.
Facts of Szechter
Polish woman in very poor health married to escape totalitarian Polland, where she had been imprisoned for offences against the regime. In this case, however, the necessary threat was clearly present, and the marriage would be annulled.
Singh v Singh
a young woman married under parental pressure, not under threat to life, limb or liberty.
Singh v Kaur
it was the husband who gave into family pressure. Threatened he would lose his job in the family business and have no income. Falls short of the objective test required.
What is the alternative subjective test
Hirani v Hirani- - the pressure… is such as to destroy the reality of consent and overbears the will of the individual’
Facts of Hirani
a young Hindu woman was threatened with eviction from the family home should she not submit to an arranged marriage.
P v R
A British Pakistani family took their daughter to Pakistan, where they arranged a marriage which she was unable to escape due to lack of funds, illness, close supervision and lack of knowledge of the local area. Marriage was voidable.
NS v MI
withheld passport and threatened to kill themselves
why is their uncertainty as to the Hirani test
cases since Hirani have been very extreme and would satisfy the objective test
