UNIT 22 Marriage

What is MARRIAGE? The classic definition of marriage in English law was coined by Lord Penzance in Hyde v Hyde [1986]: “I conceive that 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.”

The three main conditions for a valid English marriage The VOLUNTARY FOR LIFE of ONE MAN and union ONE WOMAN voluntary for life monogamous

Types of relationships in England and Wales today MARRIAGE (Marriage Act 2013 – “Marriage of same-sex couples is lawful”) CIVIL PARTNERSHIP (Civil Partnership Act 2004) LIVING TOGETHER (COHABITATION) SCOTLAND – Marriage and Civil Partnership Act 2014 – Marriage of same-sex partners is lawful NORTHERN IRELAND – marriage of same-sex couples is recognised as a civil partnership (marriageable age is

CIVIL PARTNERSHIP -same rights and responsibilities as marriage; can be ended if one of the partners dies, or by applying to court to bring the partnership legally to an end (cannot be brought to an end if it has not lasted at least a year) PRECONDITIONS - marriageable age 16 or over (youth) - neither of the partners can already be married or a civil partner - partners cannot be close blood relatives (consanguinity) - partners need to have lived in the same area in England or Wales for at least seven days PARENTAL CONSENT – needed for those between 16 and 18 MARRIAGE ACT 2013 – civil partnership can be converted into marriage = a legal relationship which can be registered by two people of the same sex who are not related to each other

LIVING TOGETHER (COHABITATION) - in case of a breakup cohabiting partners have no legal right to maintenance and their share of assets, including property and inherited property - a living together agreement or cohabitation contract (sets out eg. shared responsibility for children, ownership of property, ownership of jointly owned possessions) = living together as a couple without having registered a civil partnership setting down legal rights in certain areas of the relationship (applies to same-sex couples)

COMMON LAW MARRIAGE - Three basic features (when a common-law marriage is challenged, proof of the following elements is critical) 1. A present agreement to be married. The parties must announce to each other that they are married from that moment forward. 2. Cohabitation. The parties must actually live together in order to support a claim of common-law marriage. Maintenance of a separate home by one of the parties may nullify a common-law marriage. 3. Public representations of marriage. The couple must consistently hold themselves out to the public as married. ONLY married or civil partnered couples have legal rights and responsibilities for each other !!! - union of two people not formalized in the customary manner as prescribed by law but created by an agreement to marry followed by cohabitation (informal marriage); marriage that is considered married by both partners but hasn’t been formally solemnized

JUDICIAL DIVORCE in England? DISSOLUTION OF MARRIAGE ? UNION FOR LIFE the intention of the parties (at the initiation of the marriage) must be union for life

Regulations about starting a marriage One of the easiest contracts to enter into but with far-reaching consequences for A) the parties themselves B) their children C) the whole society

Who can marry? Two chief BARS to a valid English marriage A) YOUTH – only a person of age has an unfettered right to marry B) CONSANGUINITY – blood relatives who have a close blood relationship cannot marry under any circumstances

YOUTH Marriage Act abolished marriage for those under 16 in England and Wales Family Law Reform Act 1969 – lowered the age of majority to 18 - If either party is under 16 – no marriage - If one of the parties is 16 or over, but under 18 – consent of both parents is required

VOID or VOIDABLE A) if either party is under 16 – the ceremony is performed – marriage is not valid – void ab initio) B) If the parties are close blood relatives C) If one of the parties is already married or in a civil partnership ANNULMENT A marriage entered into A) without due consent (eg. Intoxication or duress) B) mistake as to identity C) pregnancy by another man when entering into marriage D) marriage wasn’t consumated (doesn’t apply to same-sex partners) E) having a sexually transmitted disease when entering into marriage ANNULMENT

FRAUD YES - Deception as to identity NO - If a man deceives a woman as to his fortune or his status (misrepresentation) - If a woman deceives a man as to her virginity (misrepresentation)

Mental incapacity A marriage with a mentally incapacitated person VOID VOIDABLE before 1959 after 1959 Mental Health Act 1959 – swept away all classification of the mentally ill lunatics no longer exist.

Essential expressions: - to contract to celebrate to solemnize marriage=sklopiti to enter into brak - binding for life = doživotno obvezujući - the rules relating to consanguinity = krvno srodstvo affinity = srodstvo preko bračnog partnera (po tazbini) - consent of parents = suglasnost roditelja - misrepresentation = lažno prikazivanje činjenica - a void contract = ništav ugovor - a voidable contract = poništiv ugovor - dissolution of marriage = razvrgnuće braka - judicial divorce = sudski razvod - duress = prisila, prinutda - mental incapacity = duševna smetnja - to be of age / of legal age = punoljetan - legal age = punoljetnost - # to be underage / a minor = maloljetnost - to annul a marriage = poništiti brak - annulment = ništavost, poništenje - decree of nullity = rješenje o poništenju - register office = matični ured (a British government office where births, deaths and marriages are officially recorded and civil marriages take place)

UK marriage laws Study the marriage laws given below and attach each of them one of the following technical terms. There is one term you won’t need. DURESS --- CONSANGUINITY --- YOUTH --- VOID MONOGAMOUS --- VOIDABLE --- PARENTAL CONSENT 1. Both members of the couple must be aged 16 or over. 2. You can't already be married (see bigamy). 3. Can't be too closely related. 4. Under 18s must gain their parent's or guardian's consent, otherwise it is a criminal offence, although the marriage would still be valid. 5. Marriages involving under-16s are not recognized by law. 6. No one can be forced to marry against their wishes.

Explain the following terms: a prenuptial agreement a minor a spouse matrimony Minister of the Church registrar dissolve registryoOffice/register office bigamy monogamous Contract mutual consent to be of legal age

Compare the following articles from Croatian legal acts with English law and translate them into English. I Crotian Constitution Članak 62. stavak 2. 'Brak je životna zajednica žene i muškarca.‘ II Croatian Family Law Act Članak 12. Brak je zakonom uređena životna zajednica žene i muškarca. Članak 13. (1) (1)Brak se sklapa suglasnom izjavom žene i muškarca u građanskom ili vjerskom obliku. (2) (2) Brak u građanskom obliku sklapa se pred matičarom. (3) (3) Brak se u vjerskom obliku s učincima građanskoga braka sklapa pred službenikom vjerske zajednice koja s Republikom Hrvatskom o tome ima uređene pravne odnose.

Compare the preconditions for a valid marriage as regulated by the Croatian Family Law Act with English law. What is the same, similar or different? 2. PRETPOSTAVKE ZA VALJANOST BRAKA Punoljetnost Članak 25. (1) Brak ne može sklopiti osoba koja nije navršila osamnaest godina života. (2) Iznimno od odredbe stavka 1. ovoga članka, sud može u izvanparničnom postupku dopustiti sklapanje braka osobi koja je navršila šesnaest godina života ako utvrdi da je mentalno i tjelesno zrela za brak te da je sklapanje braka u skladu s dobrobiti te osobe. Poslovna sposobnost i sposobnost za rasuđivanje Članak 26. (1) Brak ne može sklopiti osoba nesposobna za rasuđivanje. (2) Osoba lišena poslovne sposobnosti u davanju izjava koje se odnose na osobna stanja, brak može sklopiti uz odobrenje skrbnika. (3) Ako skrbnik iz stavka 2. ovoga članka odbije dati odobrenje za sklapanje braka, osoba lišena poslovne sposobnosti u davanju izjava koje se odnose na osobna stanja može sudu podnijeti prijedlog za odobrenje sklapanja braka u skladu s člankom 450. stavkom 1. ovoga Zakona. Nepostojanje srodstva Članak 27. (1) Brak ne mogu međusobno sklopiti krvni srodnici u ravnoj lozi, a u pobočnoj lozi sestra i brat, polusestra i polubrat, dijete sa sestrom ili polusestrom, ili bratom, ili polubratom svojega roditelja, djeca sestara i braće te polusestara i polubraće. * lineal consanguinity = srodstvo u ravnoj lozi (one descends from another) collateral consanguinity = srodstvo u pobočnoj lozi (descend from the same common ancestor)