Marriages

Marriage

It is a legally binding contract which the courts would give legal recognition to. Therefore once there is a valid marriage there are certain legal consequences that would flow from the contract. Thus one 3as to be aware of the requirements that must be complied with to form a valid marriage.


Consequences that flow from a valid marriage.

1. Gives the wife a different status.

a. Financially - widower's pension
- insurance schemes
- welfare benefits to widow
- claim damages if death caused be negligence

b. Land law - class F land charge.

2. Gives the child a legitimate status – Sc 2(1) Children Act 1989

3. Citizenship

4. Right to succeed to property upon death.
Adams v Palmer

Appleton CJ - These consequences do not flow from the parties own choice. These obligations and advantages are conferred by the law of the state. Thus the parties cannot agree or disagree on what obligations and rights they should or should not have. Further the parties cannot contract out of these rights and obligations based on the argument of freedom of contract. These rights and obligations would exist so long as the marriage lasts and it cannot be changed or modified by the parties.

Further the marriage can only be terminated with a decree of the courts and not by the parties themselves. Upon the termination of the marriage contract, the courts would also have to consider certain other issues such as:

i. the payment of maintenance
ii. property settlement
iii. upbringing of the children

However Lord Mackay stressed that the integrity and independence of the family unit is the basic building block of a free and democratic society and the need to defend it should be clearly perceivable in law.

In recent years there has been a decrease in the number of marriages and an increase in the number of persons cohabiting .

It must be noted that from the General Household Survey 1989, 137 in 1989 stated that 1 out of 10 couples cohabit.


The question therefore arises as to the reason why couples prefer to cohabit.

i. they have no capacity to marry as their first marriage is still subsisting.

ii. to avoid the financial responsibility attached to the marriage.
iii. to postpone the legal incidents of marriage and to have a pre-marital experience.

iv. the marriage contract is irrelevant as they reject the traditional views of a marriage
and the assumption of the roles that come with it.

It must be noted that cohabits were not given any legal status except in recent years. The reason as to why this was the case was because both Parliament and the courts refused to condone such activities which were considered as immoral and against public policy as it was going against the sanctity of marriage.

(The topic on cohabitation will be dealt with later)

b. Definition of a marriage

The classic definition of marriage in English law is that of Lord Penzance in Hyde v Hyde (1866)
“ I conceive that marriage, as understood in Christendom, may.. be defined as the voluntary union for life of one man and one women to the exclusion of all others”.

There are four limbs / elements to be satisfied

1. Voluntary union. If the parties were forced into the marriage, it can be set aside.

2. It must be for life. The question arises as to whether this requirement is inconsistent with the law of divorce. The only interpretation that can be put on Lord Penzance’s statement is that the marriage must last for life unless it is previously determined by a decree or some other act of dissolution.

3. It must be heterosexual

4. It must be monogamous. Neither of the spouse may contract another marriage so long as the original union subsists.

c. Formation of a Valid Marriage

There are two requirements that must be complied in order for there to be a valid marriage in existence.

Brook v Brook (1861)
Lord Campbell - "While the from of entering into the contract of marriage are to be regulated by the lex loci celebrationis, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated."

See also Sottomayor v Debarros Cotton LJ

(A) Capacity

A person's capacity to marry is governed by the parties lex domicilii

The elements that have to be complied with are as follows.

i. Sex

The parties to the marriage must be respectively male and female.

This principle is well established in the case of Corbett v Corbett. The court stated that a person’s biological sex is determined at birth and cannot be altered by subsequent surgical intervention. There were numerous other cases which followed this decision , have been challenged in the European Court of Human Rights, on the ground that the current UK law contravenes the ECHR.

ii. Neither party must be married

English law promotes marriages which are monogamous in nature. Therefore a person who is already married is not free to marry until his first partner has died or the first marriage has been dissolved.

iii. Age

Section 2 Marriage Act 1949 states that a valid marriage could not be contracted if
both the parties are below the age of 16.

iv. The parties must not be within the prohibited degree as set out in the Marriages Acts 1949 –1986.

v. It must not be a polygamous marriage.

(B) Formalities
The law in relation to formalities are governed by lex loci celebrationis i.e. the law of the country in which it is celebrated.

Until 1753 , little formality was required to create the status of marriage. Lord Hardwicke’s Act in 1753 abolished the informal common law marriage and replaced it with a public church ceremony . This Act introduced certain fundamental principles such as giving of notice, requirement of consent and system of registration which remain with us today.

Prior to the Act no formalities were required for the formation of marriage .

The Marriage Act 1836 introduced the additional options of a civil ceremony in a register office or a religious ceremony celebrated in a non Anglican place worship. Today the position is governed by the Marriage Acts 1949-1994, as amended by the Children Act 1989.

d.Termination of Marriages

A marriage can be terminated either by obtaining:
i. a decree of nullity or
ii. a decree of divorce

In obtaining a decree of nullity the marriage can either be declared to be void or voidable.


The distinction between a decree of nullity and divorce

A decree of nullity is a statement that a marriage never existed: the conditions of annulment , with the exception of wilful refusal to consummate the marriage , relate to conditions obtaining at the time of marriage . Divorce, on the other hand , concerns marriages that existed but which are now being brought to an end , and the ground for divorce, irretrievable breakdown , is concerned with events that occurred after the marriage took place. Despite the fact that nullity and divorce have these different concerns, the law has considerably assimilated the consequences of nullity and divorce decrees, especially in relation to the status of children born within an annulled marriage and financial provision on the granting of a decree.