Family Law: Marriage and Civil Partnerships

Relevant Statute:

1. Civil Partnership Act 2004
2. Matrimonial Causes Act 1965
3. Marriage Act 1753/1949/1994
4. Adoption Act 1976
5. Marriages (Prohibited Degrees of Relationship) Act 1986
6. Gender Recognition Act 2004
7. Legitimacy Act 1976
8. Immigration and Asylum Act 1999
9. Asylum and Immigration (Treatment of Claimants etc) Act 2004
10. Forced Marriage (Civil Protection) Act 2007
11. Family Law Reform Act (1987)

Lord Hardwicke's Act 1753: Clandestine Marriages Act

• attempted to address problems with canon law
• set out to channel marriages into a standard form to increase parental control over marriages of minors/to improve registration of marriages
• stipulated that marriages should only take place in church after the calling of the banns on three success sundays or obtaining of a licence (common or special)
• consent of a minor's parents/guardians had to be obtained
• marriage had to be recorded in the parish register
• none of this was new except the provision that marriages that didn't comply with certain formalities would be void
• act applied to all persons except members of the Royal Family, Quakers and Jews. 
• thus, protestant dissenters and catholics were compelled to marry according to Anglican Rites or not at all. 

basic rule: marriage can be created between any man and woman who comply with the stipulated formal requirements of marriage and have the necessary legal capacity. 

If they do not, the law of nullity can be applied:

Either: void from date of ceremony-> no legal effect-> void marriage

Or: defective but treated as valid unless/until annulled by court-> voidable marriage

Distinction: 

Lord Greene MR in De Reneville v De Reneville (1948): 

A void marriage is regarded by the court as never having taken place, no decree of annulment is necessary.

A voidable marriage is regarded by the court as valid until a decree of annulment has been pronounced by a court. 

Main Differences

1. decree of nullity can be pronounced in relation to a void marriage at any time (including after death). Voidable marriage can only be annulled during the lifetime of the parties. 
2. If a marriage is void, no valid marriage existed. Parties don't need to obtain a decree of nullity to act as single people, but they usually do-> court's power to grant financial relief under ss 23/24 MOA are only available where a decree has been granted. If voidable, it is valid until/unless annulled. 
3. If void, any interested person may take nullity proceedings to have it annulled. 

Decree of Nullity vs Divorce

decree of nullity:

• marriage never existed. 
• Conditions: wilful refusal to consummate (doesn't apply to civil partnership), conditions at the time of marriage.

divorce/dissolution:

• marriage/civil partnership exists but is being brought to an end
• irretrievable breakdown
• events that occur after marriage has taken place

nullity

• clarifies legal capacity required for marriage in English law. 
• provides remedy for those who can't have a divorce for cultural or religious reasons

Grounds for a Void Marriage

s.11 Matrimonial Causes Act 1973 (these also apply to civil partnerships)

Prohibited Degrees

s.1 Marriage Act 1941 (as amended) lists relatives whom a person can't marry. Prohibited degrees include half-blood relationships:

• if a child is adopted he/she remains within the same prohibited degrees in relation to his or her natural parents and other relatives as if he/she hadn't been adopted (Adoption Act 1976 ss 39(1), 47(1))
• adoptive parent and the child he/she adopts are within the prohibited degrees (Adoption Act 1976 s.39(1))
• no other prohibition arises out of adoption: man may marry adoptive sister or other female adoptive relation and vice versa.
• list of prohibited degrees includes not only relations of consanguinity but certain relations of affinity:
• Marriage (Prohibited Degrees of Relationship) Act 1986: sets out policy law should follow in respect of marriages between affines. 
• basic premise: marriage with relatives by affinity is permitted.

Two cases are only permitted subject to conditions: 

• marriages with in-law relationships: a man can only marry his daughter in law if both are over 21. A person can only marry a child's spouse (daughter/son in law) if the spouses mother or father are dead. 

This was considered in the European Court of Human Rights in:

Case: B&L v UK (Applications No 36536/02) The Times, September 13, 2005

• law which prohibited marriage between parents in law and children in law was a breach of rights under Art.12.
• the government argued that the restriction wasn't absolute. Once B's wife and L's husband died, the marriage was possible. 
• the Court wasn't convinced as only the marriage, not the relationship was forbidden.

Response: Marriage Act 1949 Remedial Prder 2007 (s1 2007/438)

• amends incompatibility between English law and Convention
• provisions of 1949 Act prohibiting marriage to parent of former spouse/ to former spouse of child are repealed by Art.2(9).
• marriage to a stepchild is only permitted if:
• at the time of marriage both parties are over 21
• stepchild must not have been the cild of the stepparent's family at any time when the stepchild was under 18.

Underlying Policy: to preclude confusion in family relations/ discourage marriages between parties who have previously enjoyed a parent-child relationship. 

Minimum Age

• a marriage is void if either party is under 16
• absolute rule for any person domiciled in England.
• the rule can't be avoided by marrying abroad. 

Case: Pugh v Pugh (1951) P 482

• domiciled englishman married a 15 year old Hungarian girl in Austria (the marriage was valid in Austria and Hungary)
• marriage regarded as void in England
• Pearce J: absolute rule for any English person that they may not marry when they're under 16 or marry anyone under that age.
• 16, in accordance with age of consent
• 16-18 year old's require parental consent
• registrar can refuse to conduct the marriage rather than invalidating it. 

Defective Formalities

Parental Consent:

• either party under 18, not widowed. MA s.3
• consent of each parent who has parental responsibility/ each guardian required.

Exceptions:

• where a residence order is in force: consent of person(s) with whom the child lives/ is to live is required.
• where a care order is in force: consent of the local authority designated in the order and parent/ guardian
• if a residence order is in force with respect to the child immediately before he/she turned 16, consent of person(s) with whom the child lives is required. 
• if the child is a ward of the court, consent of the court and parents/guardians is required. 
• if it's impossible to obtain the necessary consent/if consent is withheld, consent of the court may be obtained.

Preliminaries to the Marriage Ceremony

• to provide measure of publicity
• give time in which objections may be made

Church of England (Anglican Ceremony)

• may be preceded by banns, read out on successive Sundays
• parties may marry after the 3rd reading
• alternatively they may obtain a common licence from church authorities or special licence issued on behalf of Archbishop of Canterbury (the latter enables the wedding to take place in any venue at any time)

Civil and Non-Anglican Ceremonies

• standardised by Immigration and Asylum Act 1999
• parties have to obtain a superintendent registrar's certificate
• both parties must give notice to superintendent registrar of their intention to marry
• have to give details of name, marital status, place of residence, occupation, nationality (must be done in person but needn't be together)
• 15 days waiting period follows
• superintendent can raise any suspicions as to the possibility of the marriage being a sham.
• further restrictions: Asylum and Immigration Act 2004
• criticised as incompatible with Art 12/14 ECHR

Case: R (Baiai and Others) v Secretary of State for the Home Department (2006) EWHC 823

• new rules violate ECHR
• ->"Men and women of marriagable age have the right to marry and to found a family, according to national laws governing the exercise of this right."
• the fact that the rules didn't apply at all to persons married by the anglican church was held to be discriminatory and incompatible with Art 14.
• Buxton LJ: whilst immigration control is accepted as a legitimate ground for interfering with Art 12 right, all that it does is open the possibility of some limitations on the Art. 12 right.
• doesn't mean that the state is free to choose any means of controlling immigration it considers prudent or necessary regardless of impact on Art. 12. 
• difficult to see that interference with Art 12 rights could be justified on grounds of immigration control where parties indeed intended to live together as man and wife. 
• secretary of state can only interfere with the exercise of Art 12 rights in cases that involve (or likely involve) sham marriages entered into with the goal of improving immigration status.
• scheme to achieve that end must either properly investigate individual cases or at least show that it has come close to isolating cases that very likely fall into the target category.
• must also show that the marriages targeted to indeed make substantial inroads into the enforcement of immigration control. 
• see R (Bigoku and another) v Secretary of State for the Home Department, R/Tilki) v Secretary of State for the Home Department (2007) EWCA Civ 478, (2007) All ER (D) 397
• as a result, the rules relating to Certificate of Approval have been amended
• Home Office has been granted leave to appeal the decision in Baiai to the House of Lords

The Marriage Ceremony

Anglican Marriages

• can take place after any of the ecclesiastical preliminaries have been observes or after superintendent registrar's certificate has been issued
• marriage must be celebrated by a member of the clergy
• he/she is entitled to refuse to marry anyone whose former marriage has been dissolved if the former spouse is still living (Matrimonial Causes Act 1965 s(8) 2)

Civil Marriages

• must be secular and take a simple form
• parties declare that they don't know of any lawful impediment to the marriage
• each must call upon those present to witness that they take the other as their lawfully wedded husband or wife
• ceremony takes place in Register office or other place "licensed for marriage ceremonies" with open doors
• two or more witnesses must be present

Marriages in a registered place of Religious Worship

• parties to such marriages must comply with civil preliminaries
• building in which the ceremony takes place must be registered for solemnisation of marriages as a place of meeting for religious worship. 
• "place of religious worship" doesn't extend to Scientology (see ex parte Segerdal (1970) 2GB 697)
• Sikh, Hindu, Islamic places are entitled to be registered for solemnisation of marriages
• if registrar isn't present, celebrant must be an "authorised person" to carry out marriages
• the form of the ceremony is a matter for the parties/religion controlling the building
• parties must declare that they know of no lawful impediment, state that they call upon those present to witness that they take the other party to be their lawfully wedded wife/husband

Quaker and Jewish Marriages

• exempt from provisions of Lord Hardwicke's Act
• civil preliminaries must be completed
• celebration governed solely by rules of those religions

Places Licensed for Marriage Ceremonies

• Marriage Act 1994 (amends Marriage Act 1949)
• designated public places may be licensed by public authorities for ceremony of marriage
• marriages may be solemnised in registration districts where neither party resides
• Marriages (Approved Premises) Regulations 1995: premises must be "permanently immovable structure comprising at least a room or any boat or other vessel which is permanently moored"
• ceremony can not be religious
• all marriages (except Jewish and Quaker and those conducted under special or Registrar General's licence) must take place between 8.00 am and 6.00 pm
• failure to observe this rule will not invalidate the marriage

Failure to Observe Formalities

• majority of defective formalities in a marriage do not affect its validity
• where the form does have an impact, the marriage will only be void if both parties contracted it with knowledge of the defect
• in effect it's impossible for a person in England to contract a marriage that is void because of a formal defect

Case: R v Bham (1966) 1QB 159

• court suggested that marriage in English law can only be created by something which can be described as a ceremony in a form known to be recognised as capable of producing a valid marriage

s.24 and 48 Marriage Act: certain defects, including failure to acquire necessary consents will not invalidate marriage.

s.25 and s.49: defects which will invalidate a marriage where both parties are aware of the irregularity at the time of the ceremony.

"knowingly and wilfully" intermarrying contrary to requirements

-> unclear if both parties must know as a fact that the formality hasn't been complied with.

-> whether they must know as a question of law that the defect will invalidate the marriage

Effect of Irregularities

Case: Gereis v Yacoub (1997) 1FLR 854

• marriage conducted by Coptic Orthodox Priest in a Coptic Orthodox Church not licensed for marriage
• even though the parties had lived together as husband and wife after the ceremony, their knowledge of the defective formalities (no notice to superintendent registrar, marriage not in a registered building, conducted by unauthorised person) invalidated the marriage.
• the ceremony was held to be sufficiently close to the prescribed form to escape relegation to "non marriage"
• had hallmarks of marriage that would be recognised but for the formal requirements of the Marriage Act 1949

Case: CAO v Bath (2000) 1 FLR 8

• appellant had been refused widow's pension on the ground that her 37 - year marriage was void.
• Sikh temple in which she married wasn't registered to celebrate marriages
• Court of Appeal held that, as there was a common law presumption that a couple who claimed to be husband and wife, following long cohabitation, had married (unless the contrary is proven), it would be wrong to place the appellant who had gone through a ceremony, in a worse position than someone who hadn't.
• Both she and her husband had been unaware that the temple wasn't registered: they hadn't knowingly and wilfully intermarried" as provided by s.49 Marriage Act 1949
• had they known, the marriage would've been void.

An Islamic ceremony in a private flat: AM v AM (Divorce: Jurisdiction: Validity of Marriage) (2001) 2FLR 6 and a Hindu ceremony in a restaurant: Ghandi v Patel (2002) 1FLR 6

have been held to be non-marriages, being far too distant from what one would expect in a marriage ceremony.

Why is the Law concerned with the Formalities of Marriage?

• formalities require individuals to understand the solemnity of the occasion
• require advanced thought and preparation
• ensure that there is a clear state record that the wedding has taken place
• draw clear line between marriage and engagement
• allow an individual to object to the wedding

One or more Parties are already Married

• marriage is void
• remains void even if the parties believe on reasonable grounds that the other party to the marriage was dead and a defence to a charge of bigamy is successfully pleaded
• parties who have reason to believe the other party to the marriage is dead should seek a decree of divorce or presumption of death and dissolution of marriage within s.19 MCA

Parties not respectively Male and Female

Case: Talbot v Talbot (1967) 111 SJ 213

• marriages between persons self-evidently of the same sex are void
• marriage between two women held to be void

• marriage between transsexuals/ persons who following gender reassignment are now of the opposite sex have historically not been valid marriages
• recent legislative changes mean that as long as certain formalities involving recognition of new gender by appointed panel under Gender Recognition Act 2004 are met, these marriages may now be valid

Transsexual Couples

• until 2004 transsexuals were regarded as persons of their reassigned sex for many legal purposes including passports/national insurance
• for marriages, person's sex was fixed at birth

Case: Corbett v Corbett (1971) P 83

• respondent was born biologically male
• experiencing psychological difficulties as a male, he underwent gender reassignment surgery
• now known as April Ashley, "she" married the petitioner (male).
• Ormrod J: sex of a party to a marriage was to be determined in accordance with biological not psychological criteria.
• sex: determined by biology
• gender/ perception of oneself: psychology
• marriage was void
• decision based on common law where parties were "man" and "woman"
• MCA uses the worlds "male" and "female": this could be argued to refer to gender rather than sex and takes into account more than biology

applied in:

Case: R v Tan and Greaves (1983) QB 1053

• Court of Appeal concluded that male to female transsexual was a man for the purpose o the offence of living off the earnings of prostitution

Case: Rees v United Kingdom (1987) 2 FLR 111

• ECtHR ruled that the failure of English law to recognise the right of transsexuals to marry didn't constitute a violation of the right to marry guaranteed by Art 12 ECHR
• confirmed in Cossey v United Kingdom (1991) 2FLR 492

Case: Bellinger v Bellinger (2001) 2FLR 1048

• expert evidence indicates growing acceptance of findings of sexual differences in the brain that are determined pre-natally, though scientific proof for the theory was far from complete.
• position in Corbett followed, but declared under s.4 HRA, s 11(c) MCA was incompatible with Art.8/12 ECHR.

Case: Goodwin v United Kingdom (2002) 2FLR 487

• post-operative male to female transsexual claimed her rights under Art.12 had been breached, as English law didn't allow her to marry her male partner. 
• ECtHR held that while the right to marry was subject to national laws of contracting states, "limitations thereby introduced mustn't restrict or reduce the right in such a way/to such an extend that the very essence of the right is impaired".
• "applicant lives as a woman, is in a relationship with a man, would only wish to marry a man. She has no possibility of doing so"
• the very essence of her right to marry had been infringed

As a consequence of Bellinger and Goodwin, the government introduced the Gender Recognition Bill:

• controversial, as it furthered rights of transsexuals to be recognised, which some felt went too far
• Gender Recognition Act 2004 allows to apply for Gender Recognition Certificate, through which the acquired gender becomes the legal gender. 
• s2(1) outlines criteria
• transsexual surgery isn't necessary to acquire a gender recognition certificate but it is clear evidence to support a claim that the individual wishes to live in their chosen sex. 

Polygamous Marriages

• actual or potentially polygamous marriage entered into after 31 July 1971 is void if either party to the marriage was at the time domiciled in England and Wales
• 
  

Voidable Marriages

s12 MCA

Incapacity to Consummate the Marriage

• a marriage is voidable if it hasn't been consummated due to incapacity of either party to do so
• this ground is available to either party to the marriage and a person may petition on the grounds of his/her own incapacity
• consummation requires intercourse that is "ordinary and complete" rather than "partial and imperfect"
• Dr Lushington in D v A (1845) 1 Rob Ecl 279 at 299
• sterility, as opposed to impotence is not a ground for annulment
• consummation will be held to have occurred even if contraceptives have been used throughout the marriage (Baxter v Baxter (1948) AC 274)
• incapacity can be physiologically or psychologically based but must be permanent or incurable
• physiological incapacity will be considered incurable if respondent refuses to undergo any dangerous remedial operation
• will not be regarded as incurable if the condition could be resolved by a straightforward, risk-free operation (SvS (1963) P37)
• psychological incapacity requires invincible repugnance towards the other spouse
• this isn't established if there is mere dislike or rational decision not to permit intercourse (Singh v Singh (1971) P 226)

Superintendent Registrar's Certificate Main Requirements

• notice: each party must give notice in the prescribed form to superintendent registrar of the district he/she resided in for at least seven days
• all notices are recorded in a marriage notice book which is open for public inspection
• notice must be suspended or affixed for 15 days on a noticeboard in "some conspicuous place" in the superintendent registrar's office

Objections and Inquiries

• superintendent registrar will satisfy on basis of the evidence provided that the parties are free to marry
• members of the public may object to an intended marriage: any person may enter a caveat with the superintendent registrar
• any person whose consent is required to the marriage of a minor may forbid the issue of a certificate by writing "forbidden" by the entry and signing it with a statement of the capacity in which he/she purports to act
• validity of the objection will then be investigated

Waiting Time

• after 15 days, superintendent registrar will issue a certificate that authorises the solemnisation of the marriage
• if there are compelling reasons for reducing the 15 day waiting period due to exceptional circumstances of the case (e.g. military service), registrar general may on application reduce the period.

Special Provisions for those Subject to Immigration Control

• superintendent registrar is obliged to report to Home Office Immigration Department any proposed marriages that don't appear genuine
• 2005 new rules: persons subject to immigration control won't be granted a certificate enabling the marriage to take place unless they'd been given entry clearance for this purpose or had the written permission of the secretary of state.
• -> this was declared by the Court of Appeal to be in breach of the ECHR

Special Provisions for Marriage of the Housebound and Detained

• illness/disability/detained in prison/under mental health legislation
• such persons may be married at their places of residence/detention by means of a superintendent registrar's certificate
• notice must be accompanied by official certificate giving details of detention/doctor's certificate stating that by reason of illness the person concerned ought not to move/be moved from the place where he(she is at the time, position is unlikely to change for at least three months.
• registrar general's licence may be involved for person likely to die within days/weeks for example and thus won't remain housebound for the stipulated time
• -> Marriage (Registrar General's Licence) Act 1970
• but Marriage Act 1983 establishes simpler, further-reaching procedure for disabled/ill to marry
• more marriages take place under the 1970 Act however

Wilful Refusal to Consummate the Marriage

• voidable marriage
• only groound for annulment directed to events that occurred after the marriage
• not open to a petitioner to seek nullity on the grounds of their own refusal

Case: Horton v Horton (1947) AU ER 871

• this ground requires a "settled and definite decision come to without just excuse"

Such decision can exist even where the parties didn't have opportunity to consummate:

Case: Ford v Ford (1987) Fam Law 232

• marriage had taken place while husband was serving a 5 year prison sentence
• when wife visited, they were left alone for periods of up to 2 hours
• during that time it was common for prisoners to have intercourse (although it was against prison rules)
• but husband refused
• showed no interest in living with the wife
• when granted a home visit, he insisted she take him to the home of a former girlfriend
• wife was granted a decree of nullity based on his wilful refusal arising not out of refusal to have intercourse but general behaviour which indicated that he had no intention of pursuing married life with the wife

If a party can show "just excuse" for the refusal to consummate, the ground will not be made out

1. Religious reasons

• if parties agreed that civil marriage shall be followed by a religious ceremony, it is a just excuse for refusing to consummate the marriage that the religious ceremony hasn't taken place.

Case: Kaur v Singh (1972) 1 All ER 292

• parties were Sikhs who went through an arranged marriage at register office
• husband refused to arrange the religious ceremony, which he was bound to do by Sikh custom
• Court of Appeal held that the wife was entitled to a decree of nullity on the grounds of his wilful refusal to consummate
• result would be the same if husband tried to have sex but she refused

Case: A v J (1989) 1 FLR 110

• if a party is prepared to arrange a religious ceremony but the other party refuses to proceed and insists the ceremony be postponed, the refusal, if sufficiently definite/uncompromising will constitute wilful refusal to consummate. 
• wife's uncompromising insistence on postponement of a religious ceremony because she was disappointed by his cool and inconsiderate behaviour to her constituted wilful refusal on her part to consummate the marriage

Settled and definite decision: question of fact, may involve examination of whole history of the marriage

Case: Potter v Potter (1975) 5 Fam. Law 161

• failure to consummate originally resulted from physical defect in the wife
• cured by surgery, husband made one further attempt to consummate
• wife's emotional state made this unsuccessful, husband refused to make any further attempts
• wife failed in a petition alleging his wilful refusal
• court held that his failure to  consummate resulted from normal loss of ardour
• wife would also, presumably have failed had she pursued a petition based on husband's incapacity since, at the date of the marriage he apparently had capacity and it's immaterial that he subsequently became impotent in relation to his wife

2. by agreement

In principle, such an agreement is void as it is contrary to public policy.

->Brodie v Brodie (1917) P 271

Where elderly couple has entered into a "companionate marriage", then one party insists on intercourse after the wedding, proof of the arrangement will bar the petitioner from claiming wilful refusal to consummate

-> Morgan v Morgan (1959) P 92/ Scott v Scott (1959) P103

Lack of Consent

Voidable, if either party didn't validly consent to the marriage whether out of duress/mistake/ unsoundness of mind or otherwise.

Duress

• voidable at request of threatened party
• to make out this ground there must be fear that overrides a part's true intent
• unclear if the fear must be reasonably entertained. 

Case: Scott v Sebright 81886) 12 PD 31

• subjective approach
• petitioner had married the respondent because she had been told by him that this was the only way she could avoid bankruptcy
• she was granted a decree
• Butt J: crucial issue was whether she was actually in fear not if it was reasonably entertained

Contrast->

Case: Buckland v Buckland (1968) P296

Scarman J: fear overriding consent had to be objectively entertained.

Case: Hirani v Hirani (1982) 4FLR 232

• Court of Appeal suggested that the question is whether the threats or pressure are such as to destroy the reality of the consent and to overbear the will of the individual
• nature of pressure is irrelevant, impact on the petitioner is important
• if petitioner's will has been overborne by the pressure, then no true consent has been given
• accepted that parental pressure can amount to duress
• Ormrod J: immediate danger to life, limb, liberty was simply of evidential value in demonstrating that petitioner's will had been overborne by fear.

Case: Szechter v Szechter (1971) P 286

• Simon P: whether an immediate "danger to life, limb or liberty" is a prerequisite
• outward-inward consent: if there is no outward indication of consent, the formalities prescribed by English law can't have been completed.

Case: Singh v Singh (1971) P226

• a petition was refused where the petitioner went through a religious ceremony out of obedience to her parents wishes and in deference to her Sikh religious faith
• petitioner, 17 year old, reluctantly went through arranged marriage ceremony with a man she'd never previously met.
• Karminski LJ: she never submitted to the physical embraces of the husband because it doesn't appear that she saw him again. 
• having taken the view that she didn't want to be married to him, it's understandable she didn't want to have sexual intercourse with him but that seems to be a very long way from invincible repugnance

Singh, Szechter and Singh v Kaur suggest that only a threat to life, limb, liberty could be sufficient to justify finding a lack of consent. 

-> More recent authorities in Hirani held that the nature of the pressure is irrelevant. If petitioner's will was overborne by the pressure, no true consent was given.

Scottish court of session have annulled two arranged marriages on basis of duress. 

Case: Mahmud v Mahmud (1994) SLT 599

• sustained pressure from the family to marry, including allegations that the petitioner's obduracy was responsible for his father's suffering a stroke, was sufficient to invalidate consent. 

see also Mahmood v Mahmood (1993) SLT 589

-> cases agree that fear must arise from external circumstances but not necessarily acts of the other party. 

Case: Buckland v Buckland (1968) P296

• young man accused wrongly of defiling a young girl and was advised that the alternatives were marriage or prison.
• pressure imposed by Maltese police rather than the respondent led to decree being granted
• from judgment of Scarman J it has been argued that fear will only override consent if it has been unjustly imposed
• he asserts that it would've been legitimate to coerce the petitioner into marriage if in fact he'd been guilty of the criminal charge of defiling the respondent

The Problem of Forced Marriage

Case: Sheffield City Council v E and Another, The Times, 20 January 2005

• Murphy J: distinguished wisdom of getting married from capacity to marry.
• difference between arranged and forced marriage 
• arranged marriage is legal in the UK because individuals have been assisted with finding a spouse but haven't been physically forced to marry that individual

In recent years there's been growing concern at incidence of forced marriage. Often linked to person's (usually female) incapacity to refuse.

Case: Re SA (vulnerable Adult with Capacity: Marriage) (2006) 1 FLR 867

• possible removal of a vulnerable adult from england for the purposes of marriage
• 18 year old girl, deaf, unable to speak
• able to use British sign language and lipread English (limited)
• parents couldn't use British sign language and she couldn't lipread punjabi
• local authority assessed that the girl may be taken to Pakistan to be married.
• expert evidence noted the girl had capacity to marry, anted to marry and english speaking man and live in England. 
• didn't understand the consequences of immigration or implications of a specific marriage contract to a specific individual
• court held that she wasn't to be removed from the jurisdiction without her consent which was to be obtained only following a full explanation of all issues using british sign language

Case: M v B, A and S (by the official solicitor) (2006) 1 FLR 117

• S was a 23 year old with severe learning disabilities
• her father wanted her to undertake an arranged marriage in Pakistan
• medical evidence suggested she had limited level of comprehension, was unable to make an informed decision.
• Sumner J: S didn't understand the nature of the marriage contract. She didn't understand duties and responsibilities attached to marriage

Case: Sheffield City Council v E and S (2005) 1 FLR 965

• Munby J: "Marriage, whether civil or religious, is a contract, formally entered into. It confers in the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others.  
• It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home, and a common domestic life and the right to enjoy each other's comfort and assistance. 

Forced Marriage (Civil Protection) Act 2007

• provisions for protecting individuals against being forced to enter into marriage without their free and full consent
• protects individuals who have been forced to enter into marriage without such consent.

Mistake

will vitiate consent in two situations:

1. Mistake as to the person (as opposed to his/her attributes)

Australian Case: C and D (1979) FLC 90-636

• woman married a hermaphrodite
• was granted annulment on ground of mistake of identity as she believed she was marrying a man

New Zealand Case: C v C (1942) NZLR 356

• ground will not be made out if for example a person marries another believing him/her to be rich and they turn out to be poor
• husband represented to wife that he was a well-known featherweight pugilist
• mistake as to attributes, not identity
• she intended to marry the man physically present, his name wasn't an essential condition of the marriage
• petition failed

Australian Case: Allardyce v Mitchell (1869) 6 WW&AB 45

• Wife believed husband was member of a particular family with which she was acquainted
• held to be a mistake of identity as as opposed to mere mistake of name

Case: Militante v Ogunwomoju (1993) 2 FCR 355

• court annulled marriage where petitioner believed respondent to be Richard Ogunwomoju, whereas in reality he was Anthony Osimen, and illegal immigrant. 

2. Consent is vitiated if there is a mistake as to the nature of the ceremony

• if one party goes through marriage ceremony, believing it to be a betrothal (Valier v Valier (1925) 133 LT830) or a religious conversion (Mehta v Mehta (1945) 2AllER 690) the marriage will be voidable.
• if person is mistaken as to legal consequences of marriage it will be valid (Way v Way (1950) P71)

Unsoundness of Mind

• mental illness will only invalidate a marriage under s.12 MCA if either spouse at the time of ceremony was incapable of understanding nature of marriage and duties/responsibilities it creates

Other Nullifying Factors

Mental Disorder: MCA s.12(d)

• enables a petition to be brought even though a party was able to give a valid consent to marriage if mental disorder rendered him unfit for marriage
• petitioner may rely on his/her own mental disorder

Venereal Disease

• suffered by respondent at the time of marriage 
• in a comunicable form
• unclear if HIV is a venereal disease for this purpose

Pregnancy per Alium

• at the time of marriage, respondent was pregnant by some other person than the petitioner.

Bars where the Marriage is Voidable

s.13 MCA

Approbation s.13(1)

• court won't grant a decree of nullity on the ground that marriage is voidable if respondent satisfies the court that

1. petitioner with knowledge that it was open to him to avoid the marriage, conducted himself to lead the respondent to reasonably believe that he wouldn't do so
2. that it would be unjust to respondent to grant the decree

Case: D v D (1979) Fam 70

• concerns conduct of the parties toward another
• bar is rarely applied
• difficult to establish injustice now that financial provision is available on a decree of nullity
• marriage hadn't been consummated because wife refused to undergo an operation that would've cured a physical impediment to intercourse
• husband, knowing he had a remedy in nullity, agreed they should adopt children.
• bar wasn't applied
• previous case W v W (1952) P152 held adoption within unconsummated marriage could amount to public policy reasons for approbation
• but Dunn J held that such reasons couldn't be applied after enactment of s.13(1)
• Cretney et al. suggest the bar may operate in companionate marriages

Time

• proceedings under s.12(c) lack of consent, s.12(d) mental disorder, s.12(e) venereal disease, s.12(f) pregnancy per alum
• it's an absolute bar if proceedings aren't brought within 3 years of the marriage. s.13(2)
• court may give leave for institution of proceedings after 3 years if petitioner suffered from mental disorder at some point during 3 year period and doing so is just is the circumstances. s.13(4)

Knowledge of Defect

• s.12(e) venereal disease or s.12(f) pregnancy per alum will fail unless the petitioner satisfies the court that he(she was ignorant of the facts alleged. s.13(3)
• bar won't operate unless petitioner is aware of all material facts
• fact that husband knows wife is pregnant at the time of marriage ceremony not sufficient
• he must know she's pregnant by another

Effects of a Nullity Decree

• over last 50 years, statute has made effects of nullity decree almost identical to those of a divorce decree

Status of Children of Voidable Marriages

• are legitimate
• marriage treated as valid until annulled. s.16 MCA
• legitimate if at time of insemination/conception (or time of marriage if later) both or either of the parties believed marriage to be valid
• Legitimacy Act 1976 s.1 as amended by family law Reform Act 1987 s.28
• immaterial whether belief that marriage was valid is due to mistake of law. 

Case: re Spence (1990) 2FLR 278

• to be presumed unless contrary is shown that one of the parties reasonably believed at relevant time that marriage was valid
• child will only be treated as legitimate under these conditions if birth occurred after void marriage

Financial Provisions

Case: Whiston v Whiston (1995) Fam 198

• woman knowingly entered bigamous marriage in 1973
• on granting of decree of nullity, wife sought financial provision
• on appeal from a lump sum order, Divisional Court held that the fact that only one party knew of illegality of the marriage didn't bar claims for ancillary relief
• although, because of circumstances of the case/severity of wife's conduct, award would be reduced to £20,000 from £25,000
• but in the same case, the Court of Appeal held that public policy demanded the denial of financial provision to wife in light of her criminal conduct in bigamously marrying
• if void/voidable marriage is terminated by the death of one of the partners, survivor may apply for financial provision from estate of the deceased
• Inheritance (Provision for Familt and Dependents) Act 1975 ss.1(1); 25(4)

Case: Rampal v Rampal (No.2) (2001) 2FLR 1179

• husband's ancillary relief claim wasn't barred even though he knew the wife was married at the time he went through a ceremony with her
• her culpability was greater than his
• gravity of this offence wasn't such as to deny him his statutory rights on public policy grounds

-> Whiston Principle will bar the claim of only the most culpable intentional bigamist

• void marriage is deemed to be no marriage at all
• transactions entered into on the assumption of marriage's validity will be set aside
• for voidable marriages, s.16 MCA:
• -> annuls marriage only as respects any time after the decree has been made absolute
• marriage to be treated as if it existed up to that time

Case: Ward v Secretary of State for Social Services (1990) 1FLR 119

• operation of s.16
• applicant was entitled to army widow's pension
• under terms of award, pension ceased to be payable if she remarried
• in 1986 she married a man whom she discovered after marriage to be manic depressive
• marriage was never consummated, applicant obtained an annulment
• applied to have her widower's pension restored
• held that annulled marriage constituted a marriage for the purposes of the rule that a widow's pension is terminated upon marriage

Sources and Reading

Herring, Family Law 5th Edition Chapter 2 (Longman)
Cretney et al, Principles of Family Law 8th edition Chapter 1 (Sweet&Maxwell)
Hale et al, The Family, Law&Society 6th edition, chapter 1&2 (Oxford)