formalities of marriage, void and voidable marriages Flashcards Preview

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Flashcards in formalities of marriage, void and voidable marriages Deck (29)
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Where is the classic definition of marriage found

Hyde v Hyde, in Lord Penzance’s, '- voluntary union for life of one man and one woman to the exclusion of all others’


Which case indicates that the test for whether married or not is an objective one

Hakeem v Hussain, married in civil ceremony but had not had a religious ceremony. Before, the religious ceremony the husband changed his mind, the court held them to be married.


What was decided in Hudson v Leigh

opposite is true, although you think you might be married you might not be despite subjective view


What are the 5 ceremonies that create a valid marriage

1) civil ceremony 2) Anglican ceremony 3) Jewish Ceremony 4) Quaker ceremony and 5) other religious ceremonies (although these have the most complex and involve the most issues with formalities)


what other formalities must be complied with

the place in which a marriage of CP may legally take place, the identity of the presiding person, the need to give notice, register the marriage or CP, have it witnessed.


What is a void marriage

a marriage that never came into existence because of a fundamental defect- either spouse can seek a decree of nudity and can access ancillary relief


Which S deal with prohibited degrees of relationship

S 11(a)(i) MCA


What does Part One prohibit

prohibits decrees of blood relationships, this reflects a social taboo and attempts to limit genetic disease and sexual rivalry


B and L v UK

a woman wished to marry her ex father in law. This was not allowed, she challenged this on breach of Art 12. A breach was found in ECHR, the court found that since they were already living toegtehr as a family unit, and there was no confusion of the part of the child they should be allowed to marry. However, before the Marriage (Remedial) Order, only valid if 21 and both relations had died


Stubbing v Germany

a man, who was adopted at 3, went on to have children with his biological sister. He was charged and convicted. He argued breach of Art 8 and 12, the court dismissed this is favour of policy reasons to protect against incest.


What does part 2 deal with

with marriage of step relatives, this will be prohibited unless 21 and not a child of the family S 78 MA which is aimed at deterring sexual abuse which is supported by the criminal law- sexual offences act


Which section prohibits a marriage of someone under the age of 16

S 11(a)(ii) MCA


Pugh v Pugh

a 15 year old girl was validly married die to the marriage taking place in a country where it is legal to marry someone under 15. Since the marriage was not conducted in the UK and did not concern a UK citizen, it must be valid as in the country it was celebrated in.


Alhaji Mohamed v Knott

hence sexual offence of sexual conduct with a mirror will not be criminal.


Which section makes a marriage void if certain formalities are not adhered to

S 11(a)(iii) MCA a failure the courts will be prperared to render void, however when so substantial the courts may consider it a non-marriage


Which section prohibits marrying someone already married to

S 11(b) MCA and S 57 OAPA


Which section deals with Polygamous marriages

S 11(c) MCA


R v M

polygamous marriages are subject to a rule of recognition. If such a marriage is lawful in the country it was celebrated then the marriage will be held to be valid in the UK.


Baindail v Bandail

however although marriages will be valid if celebrated in a recognised country, this rule will not apply where the marriage concerns a British citizen.


Bibi v Chief Immigration Officer

the UK would not recognise the marriage of the second wife where she tried to claim widows allowance on public policy grounds, only one person is eligible to claim such a benefit


Which section deals with voidable marriages

section 12 MCA 1973


What is a voidable marriage

is a valid marriage unless and until it is annulled only during the life time of both the spouses.


What does not apply to same sex couples

the consummation requirement


D-E v A-G

it was held that consummation occurs when there has been sexual intercourse (any other form of sexual relation does not count as consummation) which is `ordinary and complete, and not partial and imperfect'.


Baxter v Baxter

the HL condoned the use of condoms, further underlining the fact that procreation need not be intended or anticipated as a possible by-product of the exercise.


Grimes v Grimes

the court held that where the husband ‘withdrew’ from his wife, no consummation had taken place.  Consummation required "emission" within one's wife. 


White v White

same factual situation as White. Although, only two days later, Wilmer J in White v White deemed ejaculation not to be a prerequisite of consummation.


Cackett v Cackett

the conclusion in White was preferred over the one reached in Grimes.


Clarke v Clarke

despite the wife conceiving a child by a ‘rouge, persistent sperm’ the marriage was nevertheless unconsummated for want of actual intercourse.