S 12(a) incapacity Flashcards
What does incapacity relate to
The incapacity to consummate may be physical. If it is curable by non-dangerous surgery, a refusal to undergo treatment might amount to wilful refusal.
SY v SY
- although the wife had a physical problem which prevented penetration, she was willing to undergo an operation which would allow for consummation to take place, hence the marriage was not voidable.
Clarke v Clarke
the incapacity may be psychological. In this case the wife had an invincible repugnance to sexual intercourse.
G v G
repugnance will only constitute lack of capacity where it amounts to a diagnosable mental condition
Singh v Singh
there was a lack of willingness rather than a psychological condition, hence the wife could not rely on her own wilful refusal, hence the marriage was voidable.
Where is the test for mental capacity found
Sheffield City Council v E: , it was held that the parties must be able to understand the rights and duties that are imposed through marriage, setting a very low standard for capacity.
Re SA (Vulnerable Adult with Capacity: Marriage)
although the woman had the capacity to marry as she understood the change of status that came with marriage, she was death, had learning difficulties and was vulnerable. Her parents arranged a marriage in which she would have to move to Pakistan to live with her new husband. The HC held that although the woman satisfied the low-level test for capacity, since she was vulnerable and subject to coercion the court intervened to protect her.
Westminster City Council v C
the man in question was autistic and married over the phone to a woman who lived in Bangladesh. Although the marriage was held to be valid in Bangladesh, the British court held that C lacked the capacity needed to make the marriage valid. On appeal the CoA held that marriage to be valid on capacity grounds, but on PP grounds and due to the use of exploitation of C, they would not recognise the marriage.
