Marriage Unit 22

Preview What is marriage? Functional, psychological, political, religious perspective What is marriage? Functional, psychological, political, religious perspective Why do people marry? Why do people marry? Definition of marriage Definition of marriage Conditions for a valid marriage Conditions for a valid marriage Marriage as a status or contract Marriage as a status or contract Bars to marriage Bars to marriage Void and voidable marriage Void and voidable marriage Cases Cases Legal terms Legal terms Exercise Exercise

What is marriage? “Marriage (…) can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining.” (Fineman 2004) “Marriage (…) can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining.” (Fineman 2004)

What is marriage? „The lack of firm and fixed ideas about what marriage is and should be but an aspect of the alienation of modern man. And in this respect the law seems truly to reflect the fact that in modern society more and more is expected of human relationships while at the same time social changes have rendered those relationships increasingly fragile.” (Glendon 1989) „The lack of firm and fixed ideas about what marriage is and should be but an aspect of the alienation of modern man. And in this respect the law seems truly to reflect the fact that in modern society more and more is expected of human relationships while at the same time social changes have rendered those relationships increasingly fragile.” (Glendon 1989)

Functional perspective Children Children Regulation of private property and the creation of legitimate heirs Regulation of private property and the creation of legitimate heirs

Psychological perspective Common view of the world Common view of the world Modern intimate relationships – entered into ‘for what can be derived by each person from a sustained association with another; …and…is continued only in so far as it is thought by both parties to deliver enough satisfaction for each individual to stay within it” Modern intimate relationships – entered into ‘for what can be derived by each person from a sustained association with another; …and…is continued only in so far as it is thought by both parties to deliver enough satisfaction for each individual to stay within it”

Social perspective Subjugation of women (conservative view):“a public form of labour of relationship between men aned women, whereby a woman pledges for life (with limited rights to quit) her labour, sexuality and reproductive capacity, and receives protection, upkeep and certain rights to children” Some: that marriage can be regarded as subversive, protecting individuals from the power of the state and the church.

Religious perspective Spiritual union between spouses on marriage, with the spouses’ love reflecting God’s love Spiritual union between spouses on marriage, with the spouses’ love reflecting God’s love Some religions regard marriage as indissoluble Some religions regard marriage as indissoluble

Why do people marry? 42%: love 42%: love 13%: a sign of commitment 13%: a sign of commitment 9%: a sign of progression of a relationship 9%: a sign of progression of a relationship 3%: don’t know 3%: don’t know

Definitions The legal union of a couple as a husband and wife 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 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 A voluntary union for life of one man and one woman to the exclusion of all others

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

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

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

Marriage as a contract Marriage is not like other contracts because the parties: Marriage is not like other contracts because the parties: 1)cannot agree on the rules governing marriage 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) 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) 3) no time limit (must be for life)

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

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

Youth as a bar to marriage The choice of the age 16 reflects the policy of the criminal law that it is unlawful for a man to have sexual intercourse with a girl under 16 The choice of the age 16 reflects the policy of the criminal law that it is unlawful for a man to have sexual intercourse with a girl under 16

Consanguinity: prohibited degrees 1. Ascendants and descendants: parent- child, grandparent-grandchild 1. Ascendants and descendants: parent- child, grandparent-grandchild 2.Brother-sister, uncle-niece, nephew- aunt 2.Brother-sister, uncle-niece, nephew- aunt Under English law, cousins may marry Under English law, cousins may marry

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 The relationship created by marriage between a husband and his wife’s blood relatives or between a wife and her husband’s blood relatives Restrictions based on the unity of husband and wife Restrictions based on the unity of husband and wife

Marriage (Prohibited Degrees of Relationship) Act, 1986: a parent-in-law A person (X) can only marry his former spouse’s parent (Y) if: A person (X) can only marry his former spouse’s parent (Y) if: X and Y are over the age of 21 X and Y are over the age of 21 The marriage is solemnised after both X and Y’s spouses have died (B v UK) The marriage is solemnised after both X and Y’s spouses have died (B v UK)

Marriage (Prohibited Degrees of Relationship) Act, 1986: a stepchild A step-parent can marry the child of a former spouse if A step-parent can marry the child of a former spouse if 1) both parties are aged 21 or over and 1) both parties are aged 21 or over and 2) the younger party has not been a child of the family in relation to the other while under the age of 18 2) the younger party has not been a child of the family in relation to the other while under the age of 18 If a step-parent acts in a parental role towards a stepchild, the two can never marry If a step-parent acts in a parental role towards a stepchild, the two can never marry

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

Void marriage If either party is under sixteen If either party is under sixteen If parties are related by blood: consanguinity If parties are related by blood: consanguinity If at the time of the marriage either party was already lawfully married If at the time of the marriage either party was already lawfully married If the parties are not respectively male and female If the parties are not respectively male and female

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

Duress At one time it was thought that it was only possible for duress to render a marriage voidable if there was a threat to ‘life, limb or liberty’ At one time it was thought that it was only possible for duress to render a marriage voidable if there was a threat to ‘life, limb or liberty’ The Court of Appeal in Hirani v. Hirani suggested that the test for duress should focus on the effect of the threat rather than the nature of the threat The Court of Appeal in Hirani v. Hirani suggested that the test for duress should focus on the effect of the threat rather than the nature of the threat

Unsoundness of mind Only if it exists at the time of the marriage Only if it exists at the time of the marriage Marriage will not be void if someone becomes mentally ill after the marriage Marriage will not be void if someone becomes mentally ill after the marriage Voluntary intoxication should not render a marriage voidable Voluntary intoxication should not render a marriage voidable

Effects of a decree of nullity A child of a void marriage is treated as legitimate due to the Legitimacy Act 1976, as long as at the time of the marriage either (or both) parties reasonably believed that the marriage was valid A child of a void marriage is treated as legitimate due to the Legitimacy Act 1976, as long as at the time of the marriage either (or both) parties reasonably believed that the marriage was valid

Effects of a decree of nullity Due to the Matrimonial Causes Act 1973 on granting a decree of nullity, the court has the power to make ancillary relief orders to the same extent as if a divorce order was being made Due to the Matrimonial Causes Act 1973 on granting a decree of nullity, the court has the power to make ancillary relief orders to the same extent as if a divorce order was being made

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 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” 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 Does not identify how marriage is different from cohabitation Not all marriages will last for life 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) 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. 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. 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 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 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 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 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 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 The parents’ threats had destroyed the reality of the petitioner’s consent to the marriage, which would therefore be annulled

The effect Those who have undergone arranged marriages in face of a serious threat have the choice of either accepting their culture and validity of the marriage or accepting the dominant culture’s view that marriage should be made voidable Those who have undergone arranged marriages in face of a serious threat have the choice of either accepting their culture and validity of the marriage or accepting the dominant culture’s view that marriage should be made voidable An appropriate compromise between respecting the cultural practice of arranged marriages and respecting people’s right to choose whom to marry An appropriate compromise between respecting the cultural practice of arranged marriages and respecting people’s right to choose whom to marry

Mehta v Mehta 1945 A UK resident W went through a ceremony with H, an Indian, inBombay. The ceremony was conducted in Hindi, and W thought its purpose was to receive her into the Hindu faith; she learned afterwards that it was also a marriage ceremony. A UK resident W went through a ceremony with H, an Indian, inBombay. The ceremony was conducted in Hindi, and W thought its purpose was to receive her into the Hindu faith; she learned afterwards that it was also a marriage ceremony.

Held: The court granted a decree of nullity: W had not truly given her consent to any such marriage. The court granted a decree of nullity: W had not truly given her consent to any such marriage. The marriage was void, as the petitioner had not understood the nature of the ceremony The marriage was void, as the petitioner had not understood the nature of the ceremony

Recent developments Same-sex marriage Same-sex marriage Serial monogamy Serial monogamy Living apart together Living apart together

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

Legal terms Bar Bar Legal impediment Legal impediment Bar to marriage Bar to marriage Zapreka za brak Zapreka za brak

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

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

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

Legal terms Consent 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 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 Odobrenje, pristanak

Legal terms Solemnize the marriage Solemnize the marriage Sklopiti brak Sklopiti brak

Legal terms Custody 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 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 Skrbništvo nad djecom

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

Legal terms Duress /dju’res/ 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 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 (protupravna) prisila, prinuda

Legal terms Fraud 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 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 Prijevara, obmana

Legal terms Presumption 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 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 Pravna pretpostavka Presumption of sanity Presumption of sanity Pretpostavka ubrojivosti 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 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: 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

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. 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 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 3. _____Children are generally afforded the basic rights embodied by the constitution 4. _____As a result of this both parties’ status becomes single again. 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 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. 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. 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. 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 1. Open condition 2. Hypothetical condition 2. Hypothetical condition A) present A) present B) past 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 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 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 Unless he proves his innocence, he will spend a year in prison

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

Hypothetical condition: past (if = da) If clause: past perfect If clause: past perfect Main clause: would have + past participle (past conditional) Main clause: would have + past participle (past conditional) If he had pleaded guilty, he would have spent a year in prison. 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. 1. If he commits a crime, he will be punished. 2. If he committed a crime, he would be punished. 2. If he committed a crime, he would be punished. 3. If he had committed a crime, he would have been punished. 3. If he had committed a crime, he would have been punished.