#1797 - Marriage - Family Law

Marriage

Non-marriages, void marriages and voidable marriages

The presumption of marriage

• If a man and a woman live together, believe themselves to be married, and present themselves as married, the law presumes that they are legally married

  • The policy behind this is that the couple believes themselves should not suffer the disadvantages of not being so

    • Without there being clear evidence

    • In many cases, the presumption can be rebutted by showing that they do not appear on the register of marriage

The differences between...

• ...a void marriage and non-marriage

  • A void marriage is one where, although there may have been some semblance of marriage

    • There is in fact a fundamental flaw in the marriage which means that it is not recognised as valid in law

    • If the marriage is classed as void, the court has the power to make financial orders, redistributing property between the couple

      • Such powers are not available if the marriage if a non-marriage

  • A non-marriage is one where there is some vague element of marriage, but is so far from actual marriage, is not even defective

    • Gandhi v Patel [2002]: Indian couple married in Indian restaurant – in something of a party.

      • Held

        • That was not close enough to a marriage – there was no solemn element, just a party.

  • Telling the difference between the two

    • Gereis v Yagoub [1997]: H and W wanted to marry in the Russian Orthodox tradition. The priest warned them that would not be a civil marriage, so this would need to be done in a civil ceremony as well. They chose just to do the religious ceremony. Ten years passed but they then separated.

      • Aglionby J:

        • This is a void marriage, not a non-marriage

          • The ceremony had the hallmarks of an ordinary Christian marriage

          • The parties regarded themselves to be married

          • The couple held themselves out as a married couple

    • Hudson v Leigh [2009]: Here there was a religious ceremony in South Africa with people watching. However they changed the words to show it was not a marriage and even announced that it was not

      • Held:

        • Purported to be a marriage? = No

        • Look like a marriage? = Possibly

        • View of officials and couple = Not marriage

        • View of people = Not marriage

          • Therefore pointed to non-marriage

• ...a void and a voidable marriage

  • Validity

    • A void marriage is one that in the eyes of the law has never existed

    • A voidable marriage exists until it has been annulled by the courts

      • And if it is not annulled, then it will be regarded as valid

  • Legitimacy of children

    • A child born to the parties in a void marriage would be technically illegitimate

      • Unless both parties reasonably believed at the time that they were married validly

    • A child born into a voidable marriage is always regarded as legitimate

  • Who can assert the defect

    • Any interested party can challenge a void marriage

    • But only one of the spouses can assert a voidable marriage is void

  • Public interest vs. private interests

    • Herring: This tells us that void marriages are based on some conception of public interest – e.g. under age of 16 – that court will intervene on

      • A voidable marriage = no public policy objection, but something wrong that is important enough that if parties care about it, can end it

        • So no trouble if no sex – not the law’s business

          • But could be if one part of couple cares about it

The grounds on which a marriage is void

• 1. The couple are within prohibited degree of relationship

  • Consanguinity

    • This is where the couple are related to each other in certain ways, such as:

      • Parent-child

      • Grandparent-Grandchild

      • Brother-Sister

      • Aunt-Nephew

      • Uncle-Niece

    • This also includes half blood relationships, but not cousins.

  • Affinity restrictions

    • Marrying a stepchild is generally not permitted unless:

      • (1) Both parties are over the age of 21

      • (2) the younger party has not been a child of the family in relation to the other while under the age of 18

        • Thus, if the step-parent has ever acted in a parental role towards a step-child, the parties can never marry.

    • Marrying a parent-in-law used to be only permitted in limited circumstances, but it is now permitted

      • The old requirements were that

        • (1) Both parties are aged over 21

        • (2) Both their previous spouses have now died

      • This was challenged by B+ L v UK: The UK argued that restrictions were necessary so as to ensure no sexual rivalry between parents and children. W and In-Law argued that there had been some cases where you could marry in these circumstances – but only with a special act of Parliament

        • ECourtHR = fact that can do this by Act of Parliament, shows that no absolute bar is needed

          • If this is case, then must be an accessible route for everyone, not just the well-connected

          • So either there must be

            • an absolute bar, so no-one can do it

            • or some kind of committee where the parties justify their case in front of it

            • or do-away with bar altogether

      • UK decided to abolish bar in Marriage Act 1949 (Remedial) Order 2007 No 438

  • Adoption restrictions

    • An adoptive child and parent are within prohibited degree of relationships

    • And an adopted child cannot marry any of their birth relations

      • However, an adopted child can marry other relatives of their adopted parents, e.g. daughter of adopted parents.

  • Why should we stop people marrying in these circumstances?

    • Fear of genetic dangers

      • Child born to brother/sister is far more likely to have a genetic condition

        • But this would only explain the blood bar, not the affinity ones

        • AND can also ensure that a responsible couple with genetic testing would not give birth to genetically flawed child

          • Deech: if we’re worried about this, should extend the law to cousin marriages

    • Close relation marriage may undermine family

      • This may be based on protecting the child from risk

        • e.g. with step parent idea, you don’t want to confuse child etc.

    • Widespread instinctive moral reaction against it in nearly all cultures

      • So not just based on one society’s prejudices.

• 2. Both parties must be of the sufficient age

  • Marriage Act 1949 s.2

    • Both parties must be at least 16

      • This is based on the parties being unlikely to support themselves at a younger age, meaning care of any children might fall on the state

      • They may also be too young to understand the implications of marriage fully.

      • Age of 16 possibly based on continuity with law that unlawful for man to have sex with girl under age of 16.

  • Marriage Act 1949 s.3

    • If the parties are 16 or 17, then it is necessary for both to have the written consent of each parent with parental responsibility for them

      • The marriage is still valid if conducted without consent or by forged consent

      • But the requirement permits the registrar to refuse to conduct a wedding without this consent.

• 3. The Formalities must be complied with

  • Why do we need the formalities

    • Here for number of reasons:

      • There for legal and formal record

      • Clear evidence that a marriage actually took place

      • Make sure that people know that they are getting married rather than getting engaged

      • Impresses on the parties the seriousness of the event and its legal implications.

  • However, they are not too strict perhaps so as not to discourage marriage

    • E.g. Marriage Act 1995 greatly increases the number of places a person can get married – e.g. football pitch

    • And per Marriage Act 1995 ss.25 and 49 the marriage is only void for breach of formalities if the parties knowingly or willingly marry in breach of them

    • And there is no need for each party to undergo genetic testing before the marriage!

    • Should there be compulsory marriage preparation?

      • Simons: We allow people lots of time to get divorced, but should we put in steps to make sure that people know what they’re getting in to...

• 4. Neither party must be married to someone else (S.11(b) MCA 1973)

  • Assuming consensual – why should we object to bigamy?

    • Too contrary to traditional ideas of marriage?

    • Countries which allow polygamy – nearly always men who have number of wives, might disclose patriarchal attitude

    • Disputes amongst the children?

    • Ben Hashem v Al Shayif [2009]: Marriage void for bigamy, but W sued for ancillary relief

      • CoA:

        • But W can get ancillary relief still

• 5. The parties must be respectively male and female (S.11(c) MCA 1973)

  • Law used to define gender as set at birth

    • Corbett v Corbett [1971]: W is glamour model – turns out actually to be a man. W married Earl X. Earl X found out that W was a man.

      • Ormrod J:

        • Sex is set at birth

          • Factors to look at are genitals, chromosomes, gonads.

    • While this is still the case, the lack of being able to change it was declared incompatible with the EConHR

      • Bellinger v Bellinger [2003]:

        • HoL asked to reinterpret the Marital Causes Act

        • Held that could not, issued declaration of incompatibility

The rise of the Gender Recognition Act 2004

• Possible to change genders

  • S.9(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender

    • [From then on, will be regarded as man or woman]

  • Two ways to get it:

    • 1. Change in sex recognised by another country

    • S.2(1): 2. Need to show three things

      • Medical evidence that suffer from gender dysphoria

      • Have to have lived in acquired gender for two years

      • Intend to live in that gender for the rest of your life

  • Bars on getting it:

    • GRA 2004 s.4: A person already married can only be given a interim certificate

      • Which changes their sex for some purposes but not for all – i.e. their sex for marriage purposes

      • This will become a full certificate if they...