Flashcards in formalities of marriage, void and voidable marriages Deck (29)
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.