Marriage Unit 22

Preview Definition of marriage Conditions for a valid marriage Bars to marriage Void and voidable marriage Cases Legal terms Exercise

Definitions The legal union of a couple as a husband and wife A contract based upon a voluntary private agreement by a man and a woman to become husband and wife

Definition by Lord Penzance (Hyde v. Hyde) A voluntary union for life of one man and one woman to the exclusion of all others

Conditions for a valid marriage 1) parties legally capable of contracting to marry 2) mutual consent or agreement 3) an actual contract in the form prescribed by law

Conditions for a valid English marriage A valid English marriage must be: 1) voluntary 2) for life 3) monogamous

For life? Machinson v. Machinson: at the initiation of marriage the intention of the parties must be union for life

Bars to marriage Youth (the age of consent; now 18, in the past 21) Consanguinity (close blood relation)

Void marriage If either party is under sixteen If parties are related by blood:

Age of Majority The Family Reform Act of 1969 has lowered the age of majority to eighteen

Youth as a bar to marriage If one of the parties is 16 or over, but under 18, any marriage performed will be valid if the consent of both parents (or the parent who has custody if they are divorced) is obtained before the marriage is solemnized The consent need not be given in any particular form; in the absence of positive dissent it will be implied

Consanguinity 1. Ascendants and descendants, e.g. parent and child, grandparent and grandchild 2.Brother and sister, uncle and niece, nephew and aunt

Affinity The relationship created by marriage between a husband and his wife’s blood relatives or between a wife and her husband’s blood relatives

Marriage Act 1986 A man may not marry his grandmother, aunt or niece A woman may not marry her grandfather, uncle, or nephew

Marriage Act, 1986 A man may marry his mother-in-law if his former wife and his former wife’s father are both dead

Bigamy A marriage celebrated between two persons, one of whom is at the time validly married, is void The person who knowingly enters into such a marriage is guilty of bigamy

Voidable marriage Valid initially, but may be set aside because of: Lack of due consent Duress (coercion) Mistake as to identity Mental incapacity (unsound mind)

Marriage as a contract Marriage is not like other contracts because the parties: 1)cannot agree on the rules governing marriage 2)cannot agree what is to be regarded as a breach of contract, nor what compensation should be paid in case of such a breach (a different type of contract: prenuptial agreement) 3) no time limit (must be for life)

Hyde v Hyde and Woodmansee (1866) Mr and Mrs Hyde married in the Mormon community in Utah, which practised polygamy. He left the community, renouncing the Mormon faith. The authorities passed a sentence of excommunication against him and declared that his wife was free to marry again. She contracted a marriage with Mr Woodmansee in Utah. Mr Hyde sought divorce in the English courts

Hyde v Hyde Lord Penzance: the marriage would not be recognised by the English courts, even for the purpose of granting a divorce. Marriage, “as understood in Christendom, may…be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”

Deficiences Does not identify how marriage is different from cohabitation Not all marriages will last for life A lack of sexual exclusivity does not affect the marital status of the parties (although adultery may lead to divorce)

B and L v UK 2006 A relationship developed between B and L, the latter being B’s former daughter-in-law. The marriage between L. and B’s son, C, had already ended by divorce, as had that between B and C’s other parent, A. B. and L. wanted to marry, but were informed they would be unable to do so until both C and A were dead.

Held (ECHR) In placing such restrictions on the right to marry, UK law was in violation of Art. 12 of the European Convention on Human Rights

Article 12: Right to marry Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right

Results The government has taken steps to bring the law into conformity with the Convention Once the relevant order takes place, it will be possible for a man to marry his former daughter-in-law (or a woman her former son-in-law) without the necessity of the parties waiting for the deaths of their former spouses

Hirani v Hirani 1984 The petitioner: a 19-year-old Hindu girl. When her parents discovered she had a relationship with a Muslim man, they ordered her to break it off and marry a man of their choosing or else leave home. She went through the marriage but then petitioned for nullity on the basis that she had not consented to it

Held: The parents’ threats had destroyed the reality of the petitioner’s consent to the marriage, which would therefore be annulled

Mehta v Mehta 1945 The parties went through a ceremony of marriage in Hindi. The petitioner, not a Hindi speaker, thought that the ceremony was to convert her to the Hindu faith

Held: The marriage was void, as the petitioner had not understood the nature of the ceremony

Recent developments Same-sex marriage Serial monogamy Living apart together

Legal terms Dissolution The legal termination of marriage by a decree of divorce, nullity, or presumption of death Dissolution of marriage = razvrgnuće braka dissolve

Legal terms Bar Legal impediment Bar to marriage Zapreka za brak

Legal terms Valid Valjan, pravomoćan, važeći Valid marriage Važeći brak Void Having no legal effect Ništavan, nevažeći Void marriage Ništavni brak, nevažeći brak

Legal terms Voidable That can be annulled Poništiv, koji se može ukinuti Voidable marriage Poništivi brak

Legal terms Annulment A declaration that a marriage was never legally valid Annulment of marriage Poništaj braka

Legal terms Consent Agreement by choice, by one who has the freedom and capacity to make that choice. Contracts and marriages are invalid unless both parties give their consent Odobrenje, pristanak

Legal terms Solemnize the marriage Sklopiti brak

Legal terms Custody Rights and responsbilities that parents (and sometimes others) have in relation to a child; replaced by the concept of parental responsibility introduced by the Children Act 1989 Skrbništvo nad djecom

Legal terms Comply with Biti u skladu, postupiti po, udovoljiti čemu, pridržavati se

Legal terms Duress /dju’res/ Pressure, especially actual or threatened physical force, put on a person to act in a particular way. Acts carried out under duress usually have no legal effect; a contract obtained by duress is voidable (protupravna) prisila, prinuda

Legal terms Fraud A false representation by means of a statement or conduct made knowingly or recklessly in order to gain material advantage. A contract obtained by fraud is voidable on the grounds of fraudulent misrepresentation Prijevara, obmana

Legal terms Presumption A supposition that the law allows or requires to be made. Some presumptions relate to people, e.g. the presumption of innocence and of sanity. Others concern events, e.g. presumption of legality Pravna pretpostavka Presumption of sanity Pretpostavka ubrojivosti

Family law Family law is the body of law which regulates family relationships, including marriage and divorce, the treatment of children, and money issues

Family Law: Exercise Below are the main areas that Family Law covers. Write one area above each text: Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage 1. ____The process by which a legal parent-child relationship is created between individuals not biologically parent and child. 2. ____The parents of a child born within a marriage are joint guardians of that child and the rights of both parents are equal

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage 3. _____Children are generally afforded the basic rights embodied by the constitution 4. _____As a result of this both parties’ status becomes single again. 5. ______The process by which an individual or family arranges the transfer of assets in anticipation of death

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage 6. ___Generally, a trust is a right in property (real or personal) which is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust.

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage 7. ____ While types vary widely, their primary goal is to allocate the risks of a loss from the individual to a great number of people. 8. ____ A contract based upon a voluntary private agreement by a man and a woman to become husband and wife.

CONDITIONAL SENTENCES 1. Open condition 2. Hypothetical condition A) present B) past

Open and hypothetical conditions: meaning Open condition: leaves unresolved the question of the fulfillment or non-fulfillment of a condition, and hence also the truth of the proposition expressed by the main clause Hypothetical condition: conveys the expectation that the condition will not be fulfilled

OPEN CONDITION: FORM (If = ako) If clause: present simple Main clause: future (will/shall) If he pleads guilty, he will spend a year in prison.

If not = unless Unless he proves his innocence, he will spend a year in prison

Hypothetical condition: present (if = kad bi) If clause: simple past Main clause: would/should + infinitive (present conditional) If he pleaded guilty, he would spend a year in prison.

Hypothetical condition: past (if = da) If clause: past perfect Main clause: would have + past participle (past conditional) If he had pleaded guilty, he would have spent a year in prison.

Three types of conditional sentences: examples 1. If he commits a crime, he will be punished. 2. If he committed a crime, he would be punished. 3. If he had committed a crime, he would have been punished.