Family law Ending a Relationship Jon Hodgkinson

Marriage Married -number of options available –Nullity (Void and Voidable) –Separation –Divorce

Marriage Nullity Before English Law recognised divorce, nullity was the only way to terminate a marriage. The ecclesiastical courts would give a decree of the marriage being null and void. This has now led to a distinction between VOID and VOIDABLE marriages.

Marriage Nullity Void marriage is invalid from the outset. Voidable marriage is valid unless it is declared void by the courts. The present law is provided by the Matrimonial Courts Act 1973

Matrimonial Courts Act 1973 S.11 provides that a marriage is void on the following grounds only: 1. The parties are within the prohibited degrees of relationship 2. Either party is under the age of 16 3. The parties have intermarried in disregard of certain requirements as to the formation of marriage. (If not complied with the marriage formalities).

under the age of 16 Pugh v Pugh (1951) Law will not permit the marriage of any under age person domiciled in England.

…disregard of certain requirements as to the formation El Gamal v Al Maktoum [2011] EWHC 27 The parties had taken part in a ceremony in secret with complete absence of writing – non compliance with formalities held to be a ‘NON MARRIAGE’.

MCA 1973 Also provides that marriage is void if at the time of marriage either party was already married or the parties are not respectively male and female.

Void Civil Partnerships Civil Partnerships Act 2004 S.49 provide the ground on which a civil partnership is void. Similar to but with subtle differences – eg age raised to 18.

Voidable Marriages MCA 1973 s.12 provides that marriage can be voidable on certain grounds. List those grounds – then research the case of Singh v Singh [1971]226. What does Davis L J mean by the term ‘invincible repugnance’?

Voidable Marriage Non consummation Intercourse must be ‘ordinary and complete’ and not ‘incipient, imperfect and unnatural’ per Dr Lushington in D v A (1845) Baxter v Baxter (1947) AC 274 Held the use of contraception will not prevent consummation.

Voidable Marriage Incapacity See Singh v Singh – incapacity must be permanent and incurable. Either party may rely on incapacity, which means that a party may rely on his or her own incapacity in contrast to wilful refusal.

Voidable Marriage Wilful refusal Potter v Potter (1975) 5 Fam Law 161, CA Wife was physically unable to consummate the marriage. Wife had surgery but her ‘emotional state’ prevented intercourse. Husband then refused to have sex and the wife petitioned. Petition dismissed as the husband’s refusal was because of his loss of ‘sexual ardour’ rather than a wilful refusal.

Voidable Marriage Lack of Consent – marriage must be voluntary Duress- For duress to operate there must be fear sufficiently grave to vitiate true consent. In the absence of fear the marriage will still be valid Lee v Lee [1928] Father forcing boyfriend to marry with a shotgun. Hirani v Hirani [1982] Threatened by parents to be thrown out unless marry the man of their choice. CA held the test was subjective – genuine fear regardless of what others of ordinary courage may have done.

Voidable Marriage Mistake – A mistake will invalidate the marriage only if it relates to the nature of the ceremony or the identity of the other party. Unsoundness of mind- The party must be so affected as not to understand the nature of marriage. Mental disorder Venereal Disease and Pregnancy by another- A petition based on either of these grounds will fail unless the court is satisfied that the petitioner was ignorant of the facts at the time of the marriage.

Bars to a decree S.13 MCA 1973 list the statutory bars to voidable marriages even if the relevant ground was satisfied. Approbation - approval of marriage for a while by the party for the sake of some other issue eg. Adoption. Time Knowledge Voidable civil partnerships are listed at s.50 research and list those grounds. What are the bars to relief (s.51) Are these areas similar to marriage?