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Family Law > Void/Voidable M/CP's > Flashcards

Void/Voidable M/CP's Flashcards

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1
Q

what section deals with void marriages?

A

s.11 Matrimonial Causes Act 1973- grounds on which marriage is void

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2
Q

what is the 1st ground?

A

Prohibited Degrees of Relationship

s.11(a)(i)

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3
Q

what does it cover?

A

Covers those related by blood and by marriage.
e.g parent, grandparent, child, grandchild, aunt, uncle, niece, nephew if you can name that you cannot get into a rels with them, you can marry your cousin- reason behind this morally not right socially unacceptable biologically might be probs

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4
Q

How is the law different with step children?

A

you can marry stepchild of a former spouse if they are aged 21 or over,child and the child has never been a child of the family, means tat the step parent could never have acted In parental role towards step child, e.g child 10 to 18

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5
Q

How is the law different with adopted children?

A

adoption goes trhu birth family loses rights so no connection btw birth monther and child although social reasons cannot marry parent as blood related this protects people from sexual expolitation

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6
Q

what is the 2nd ground under this act?

A
  1. Under 16
    s.11(a)(ii)
    this reflects criminal law, sex child under 16 = criminal offence if under 16 seen as too young to really know what youre doing
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7
Q

3rd ground?

A
  1. Lack of Formalities

s. 11(a)(iii) – see Marriage Act 1949 s.25 and s.49

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8
Q

4th ground?

A

Either party already married or in a civil partnership

s.11(b)

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9
Q

5th ground for void?

A
  1. Polygamous marriages
    s.11(d)
    No person domiciled in England and wales can enter into polyg marriage if not you are allowed to conduct your polg marriage in uk
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10
Q

what about s.11c?

A

repealed snce same sex, as can now have same sex

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11
Q

what are the 4 factors you look at for a void marriage?-summary of s.11?

A
  1. formal ceremony- need formal cere & formalities
  2. exclusivity- no other parties involved
  3. adulthood- must be over 16
  4. lack of prohibited rels- must be married to someone not close to u = void marriage
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12
Q

what is s.11 for?

A

s.11- void

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13
Q

Can a couple be prevented from marrying due to public policy reasons?

A

No
R (On the Application to the Crown Prosecution Service) v Registrar General [2003]
- not successful need to be a strong policy reason , very doubtful for an outstanding pol r

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14
Q

Marriage Act 1949 void ceremonies?

A
  • s 25 – Anglican Marriages only
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15
Q

marriage void under this sec 25 if?

A
  • ‘knowingly and wilfully’- show must intend to carry out act – tells u if u don’t intend to do it ur marriage is not void
  • failure to carry out necessary preliminaries-Section 2 a b , section 2 a c –prelimianries- that u haven’t had banns read or filled out register properly

-marrying in a place that has not been approved for marriage-S 25 2 d knowingly willfuly I unapproved premises

-marriage not conducted by appropriate official-S 25 3 – married by someone that is not an appropriate official
S25 4 leave till later

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16
Q

what does s.49 concern?

A

– concerns other marriages (civil ceremonies)- no church

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17
Q

void under s.49 if?

A 
Need intention
No notice
No certificate 
Not approved place (not certi)
Certificate expired
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18
Q

what is s.25 and 49 for?

A

U can say about s 25 and 49 although longer slightly similar- THESE ARE VOID MARRIAGES ,

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19
Q

what do you have to do to make it void?

A

You have to knowingfully and willingly to make it void,, Gereis v Yogoub [1997] – ‘knowingly and wilfully’ failed to comply with the law.

  • Greek Orthodox Church wedding in unlicensed premises

, knew premises unlicensed, marriage void cause knew.

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20
Q

Note about this?

A

Note:

Marriage (Same Sex Couples) Act 2013 (schedule 7, Part 2, paragraph 4) amended Marriage Act 1949, s 25

  • same-sex couples cannot marry in a church
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21
Q

Consequences of a void marriage?

A

so if you have void marriage- IT IS NEVER IN EXISTENCE logically there is nothing to bring to end but quirks of void marriage is you can get:
from

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22
Q

what can you get?

A
  • financial relief
  • pension
  • property
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23
Q

what about the things you get in void marriage?

A

Even though m never in existence, u can bring a ct order to get fianncial r. no necc to get order to prove m void. but due to 1 proof. youre not married 2 gain fr. although dont have to it’s vital.

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24
Q

what act relates to voidable marriages?

A

Matrimonial Causes Act, s 12

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25
Q

in summary of Matrimonial Causes Act, s 12?

A 
Non-consummation 
Non-Consent
Mental Disorder
Venereal Disease
Pregnancy
Gender Reassignment
26
Q

Difference between void and voidable?

A

voidable- in exitence until not, something slightly wrong, married but something makes them invalid, voidable=POTENTIAL

void- never in existence because faulty

27
Q

1st ground of s.12?

A 
1.	Non-Consummation
	s 12(a) and (b)
  • Either incapacity or refusal of either party
28
Q

1a incapacity?

A

Incapacity of either party, either can apply.

29
Q

1b refusal?

A

you cannot rely on ur own refusal consummated, only other party,e.g u cant withold having sex with some 1 and claim marriage voidable has to be other p who werent engaged.
-only applies to opp sex and same sexual

30
Q

refusal-only applies to opp sex and same sex according to which act?

A

MARRIAGE SAME SEX COUPLES ACT SCHED 4 PART 3 SUB SECTION 4 -outdated and not used as much

31
Q

2nd ground of s.12?

A 
2.	Non-Consent
	s 12(c)
32
Q

what about true consent?

A

True consent is essentially comp (formalities) def of marriage- voluntary union , voluntary consent

33
Q

4 categories of non-consent?

A

(a) duress (b) mistake (c) unsound mind (d) otherwise.

34
Q

what is meant by a)duress?

A

Here you need to assess degree of duress, not was there. - if compel to duress, threats= duress.

35
Q

duress cases?

A

Law does diff distinc btw forced and arranged marriage as sen in case -B v I (Forced Marriage) [2010]-Forced Marriage (Civil Protection) Act 2007
-thought was going on hol but forced to marry cousin= forced.

36
Q

Test relating to duress?

A

Test in Hirani v Hirani (1982)
“coercion by threats or other psychological means”
No marriage without true consent
3 year window
TEST: DID THE THREATS/FEAR/PRESSURE DESTROY THE REALITY OF CONSENT AND OVERBEAR THE WILL OF THE INDIVID-?- did the pressure destroy and di u feel no free will.

37
Q

what should we ignore when it comes to duress?

A

we should ignore threat itself & look at impact. e.g each coercion threat might not be its the impact, impact destroys the reality e.g hirani, threat ostricated in comm if not married= alters reality

38
Q

what did the family law act 1996 s.63 a 6 give?

A

“coercion by threats or other psychological means”

39
Q

what is teh 3 yr window for?

A

All void/voidable marriages law more sensitive with emotional pressure

40
Q

what is meant by b. mistake?

A

if there is mistake= not true consent it includes
mistaken identity i.e think marrying a but marrying b, not enough age or wealth
mistaken by ceremony- so if u go thru ceremony and dont realise= also enough , so has to be mistake about something material

41
Q

what is meant by c. unsound mind?

A

Consent- if u lack capacity no1 else can give it on ur behalf.
Timing- have to be unsound mind at time of marriage not after
Burden of Proof- on respondent
Understanding the nature of marriage - for other party to prove and understand nature of m.

42
Q

understanding nature of m?

A

extract- the estate of park- have to understand youre entering marriage. truuuuee

43
Q

d. other reasons?

A
  • Drukness-If go ceremony drunk- not giving consent as you can you can use your own intoxication to make marriage void
  • Fraud- tricking someone into marrying u which is diff for mistaken due to mental element.
44
Q

more ground to deal with matrimonal causes act 1973.

A
  1. mental disorder
  2. veneral diseas
  3. pregnancy
  4. gender reass
45
Q

what is meant by mental disorder?

A

In existence at the time of the marriage, not after, either party can suffer e.g lack of udnerstanding on obligations and duties of marriage, so at time giving consent, didnt really understand, what theyre doing= marriage voidable. similar to unsound mind but bit different.
Unfit for marriage

46
Q

what is meant by veneral disease?

A

either party can have sti- other party must be aware and must have it at time of m. If know marrying some 1 with sti cant use this.

47
Q

what is meant by pregnancy?

A

at time of marriage

- woman who is preg by another man at time of m cant be toher way round. has to be woman to claim.

48
Q

what is meant by gender reass cert?

A

1st sit- pre marriage -a person already married, applies for interim certif and the other party can choose to annul/affirm
2nd sit- after m-Person reassigns before marriage but the other party is unaware – there is some overlap here with s.12(c) and the ground of mistake-If you change gender before marriage and other party unaware then you can apply for partition of anullty – need lack of knowledge pregnan same with stis

49
Q

Bars to Annulment?

A

s 13 MCA 1973

Burden of Proof s 13(1)
Approval/Approbation s 13(1)-somebody acts to approve voidable ground, respondant has knowledge but leads other party to believe – aware of voidable ground but say to other party it doesn’t matter e.g before marriage man discovers wife preg by someone else, says don’t matter and gets married , he cant later try to annul marriage on ground of pregnancy

Would it be unjust to annul the marriage? s 13(1)-would it be unjust to annul non religious grounds
Financial consequences aswell may not annul marriage

3 year (reduced to 6 months for interim gender recognition certificate in s 12(g)) s 13(2) and (2A)-genral rule application must be made withi 3 years of the marriage unless you are relying on incapacity or refusal, if you rely on those 2 grounds 3 yr rule does not apply ,if youre relying on gender recog certifictte you have 6 months not 3 years

For grounds (e), (f) or (h) petitioner must be ignorant at the time of marriage s 12(3)-If you know someone has sti and then marry them cant then rely as that wouldn’t be fair 
Grounds e f h –pregnancy sti gender- highlight that sec
50
Q

In summary, a ceremony of marriage can either be?

A
  • a valid marriage
  • a voidable marriage
  • a void marriage
  • a non-marriage, a ceremony of no legal significance
51
Q

1st question you should ask in whole of family law?

A

is marriage valid?

52
Q

A little more on non-marriages…?

A

-no fr at all, no marriage at all, get nothing, so if been living with some1 for while and not married= consequences.

53
Q

what happened in the hudson v leigh case?

A
  1. whether the ceremony or event set out or purported to be a lawful marriage
  2. whether it bore all or enough of the hallmarks of marriage
  3. whether the three key participants believed, intended and understood the ceremony as giving rise to the status of lawful marriage
  4. the reasonable perceptions, understandings and beliefs of those in attendance
  • Did they believe and other people?- and did it look like a marriage etc
54
Q

difficulties between void and non m?

A

look quite sim, if minor breach probs void, with non marriage it has to be done with ignorance, knowingfully dont apply w form

55
Q

a not of cohab?

A

Rise in those choosing to cohabit

Absence of law – on formation and breakdown

No legal status as a cohabitee – ‘common law spouse’- no rights

How does the law treat children born to cohabiting couples?- there is law on children for cohab

‘Cohabitation Rights Bill’

56
Q

annulment & civil part?

A

Virtually identical

Void Civil Partnerships (s 49 and s 3 Civil Partnership Act 2004)- if parties not same sex, if already in civil, if fail outside prohib degrees, formal req complied

Voidable Civil Partnerships (s 50 Civil Partnership Act 2004- lack of consent, mental diso, ground rel to gender reass- consumm and sti missing for voiable grounds

57
Q

key words?

A

Divorce= valid marriage which after marriage needs to be brought to an end for a reason to have a divorce you need to have valid marriage –legal marriage brought to an end
Annulment= if you say you want your marriage to be annulled, tells someone that your marriage is flawed in someway which entitles respoondant to say fundamental flaw to enables you to say void or voidable – INTERPRETTTTT IN EXAM TO GET HIGH
Void marriage= marriage that never existed it is so badly flawed that it doesn’t exist but if u have void u can get finaicial relief , property order or pension, void marriage you are not married
Voidable marriage- in existence until brought to an end
Non marriage- so far from void that its nothing

58
Q

do you need ct order to end rels?

A

void-No but vital to get 1

voidable-yes do need ct order

59
Q

Who can apply to have the marriage annulled?

A

void-Anyone can apply to have marriaege annulled

voidable-only parties to marriage – so public policy reasons

60
Q

Can orders for financial relief be claimed?

A

void-yes

voidable-yes

Family Law (21 decks)

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