void and voidable marriages Flashcards
what is a void marriage?
A void marriage is where the marriage never occurred in the first place. there is no need to obtain a declarator of nullity as there was never a marriage in the first place.
what is a voidable marriage?
A voidable marriage is a marriage which is valid until proven void and a declaritor of nullity is obtained. it will only be voidable in the case of impotency
it is not possible to have a voidable civil marriage.
if a marriage is declaired void then it had retroactive effect and means that the marriage was never valid in the first place.
what are the 9 ways in which a marriage can be voidable?
nonage already married or in civil partnership essential error- by nature or mistaken belief incapacity to understand intoxication duress lack of true consent both parties of same sex forbidden degrees.
what are the rules regarding nonage?
This is where the party is bellow the age of 16. if you are bellow 16 then the marriage is void. if you are under 16 and marry someone who the legal age is 15 then it is still void.
however if you marry someone in another country where the legal age is 15 and you are above 16 and it is in another country then it is valid.
what are the rules and case regarding being already married to someone?
this is seen in the case of Burke v burke where he was already married to someone else but did not tell the other wife and married her aswell, she sought damages and declared the marriage void. section 24
you lack capacity to marry if you are in a previous marriage and it is also a criminal offence to marry if you know you are already married.
what are the rules and cases regarding error?
there is error as to the nature of the ceremony and error as to the mistakem belief of the ceremony.
the case of valier v valier showed that he did not understand the nature of the ceremony and thus a declaritor of nullity was granted.
in the case of lang v lang there was a mistake as of to why he entered into the marriage through fraudulent misrepresentation of her carrying his baby. this was not declared invalid.
mleod v adams- mistake as to identity- showed that she knew who she was marrying. (Army)
what is the case law for mental incapacity to understand and the law?
this is seen in the marriage scotland act 1977 s20 A3
the marriage is void if at the time of the ceremony the party was incapable of understanding the nature of the ceremony.
this was seen in the case of long v long where thry failed to estabish that they were unable to understand what was going on.
what is the case law for intoxication when understanding marriage?
this was seen in the case of johnston v brown
too drunk to understand, declaritor of nullity was granted.
therefore marriage was never valid.
what is the case law for duress?
this was seen in mahmood v mahmood and a declaritor was granted. there was a threat to disown her and send her away to pakistan once granted the marriage was void.
duress is tested whether the person was overcome with force and fear, not if they were scared or not. they basically had no option but to marry. where they both said yes but one or both meant to say no.
what is there now in place for people that enter into a marriage who are forced or who are being forced?
there is now the forced marriage (protection and jurisdiction) (scotland) act 2011 sections 1, 2 and 9 should be seen
this allows people to apply for orders to get out of the pressure and it is now a criminal offence to brake these orders.
this sits along side the common law of duress. where there is the test of force and fear.
tell me everything about the lack of true consent rule?
abolished by section 20 (A) (4) of the marriage scotland act 1977
this is where one or both of the couples SAID YES BUT THEY MENT NO.
seen in mahmud v mahmud and hakeem v hassain
how do we define whether someone is male or female? case law
corbett v corbett said that it was around the genetils, cromosomal and gonadal.
however this was then not followed as it was quite contraversial and was overturned with the new precident in the case of bellinger v bellinger where if someone gets their gender changed then they can marry their opposite sex. however, they must pass through a panel of people under the gender recognition act 2004.
if they are married before 2014 and are a heterosexual couple and one obtains a gender re-alignment then they will need to divorce as a same sex couple could not be in a marriage.
Also, if a married couple who are heterosexual, and one gets gender re-alignement and are in a civil partnership then this will be illegal and void.
forbidden degrees of marriage
these are of consanguinity and of affinity. (blood and not socially acceptable) both areas will make the marriage void. see schedule 1 of the 1977 act
