Marriage

1. Marriage Unit 22

2. Preview • What is marriage? Functional, psychological, political, religiousperspective • Why do peoplemarry? • Definitionofmarriage • Conditions for a validmarriage • Marriage as a status or contract • Bars to marriage • Voidandvoidablemarriage • Cases • Legal terms • Exercise

3. What is marriage? “Marriage (…) canmean a legal tie, a symbolofcommitment, aprivilegedsexualaffiliation, arelationshipofhierarchyandsubordination, ameansofself-fulfilment, asocialconstruct, aculturalphenomenon, areligious mandate, aneconomicrelationship,, thepreferredunit for reproduction, a way to ensureagainstpovertyanddependence on the state, a wayoutofthebirthfamily, therealizationofaromantic ideal, a natural or divine connection, a commitment to traditionalnotionsofmorality, a desired status thatcommunicates one’s sexualdesirability to the world, or a purelycontractualrelationshipinwhicheachterm is based on bargaining.” (Fineman 2004)

4. What is marriage? Thelackoffirmandfixedideasaboutwhatmarriage is andshouldbeis but anaspectofthealienationofmodernman. Andinthisrespectthelawseemstruly to reflectthefactthatinmodernsociety more andmore is expectedof human relationshipswhile at the same time socialchangeshaverenderedthoserelationshipsincreasinglyfragile.” (Glendon 1989)

5. Functional perspective Children Regulationofprivatepropertyandthecreationoflegitimateheirs

6. Psychological perspective Commonviewofthe world Modernintimaterelationships – enteredinto ‘for whatcanbederivedbyeachpersonfrom a sustainedassociationwithanother; …and…is continuedonlyinso far as it is thoughtbybothparties to deliverenoughsatisfaction for eachindividual to staywithin it”

7. Political perspective The role marriageplaysinwidersociety Subjugationofwomen “a publicformoflabourofrelationshipbetweenmenanedwomen, whereby a womanpledges for life (withlimitedrights to quit) her labour, sexualityandreproductivecapacity, andreceivesprotection, upkeepandcertainrights to children”

8. Religious perspective Spiritual union betweenspouses on marriage, withthespouses’ love reflecting God’s love Some religionsregardmarriage as indissoluble

9. Why do people marry? 42%: love 13%: a signofcommitment 9%: a signofprogressionofarelationship 3%: don’t know

10. 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

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

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

13. For life? Machinson v. Machinson: at theinitiationofmarriagetheintentionoftheparties must be union for life

14. Conditions for a valid marriage 1) partieslegallycapableofcontracting to marry 2) mutual consent or agreement 3) anactualcontractintheformprescribedbylaw

15. Marriage as a status or contract Inlaw, a status is regarded as a relationshipwhichhasa set of legal consequencesflowingautomaticallyfromtherelationship, regardlessoftheintentionsoftheparties Marriage as a contract: the legal consequencesflowfromtheintentionsoftheparties as set outinanagreemenmtratherthananygivenrulessetdownbythelaw

16. Marriage as a contract Marriage is not like othercontractsbecausetheparties: 1)cannotagree on therulesgoverningmarriage 2)cannotagreewhat is to beregarded as a breachofcontract, nor whatcompensationshouldbepaidincaseofsuch a breach (a differenttypeofcontract: prenuptialagreement) 3) no time limit (must be for life)

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

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

19. Youth as a bar to marriage • If one oftheparties is 16 or over, but under 18, anymarriageperformedwillbevalidiftheconsentofbothparents (or theparent who hascustodyifthey are divorced) is obtainedbeforethemarriageissolemnized

20. Youth as a bar to marriage Thechoiceofthe age 16 reflectsthepolicyofthecriminallawthat it is unlawful for a man to havesexualintercoursewith a girlunder 16

21. Consanguinity: prohibited degrees • 1. Ascendantsanddescendants: parent- child, grandparent-grandchild • 2.Brother-sister, uncle-niece, nephew- aunt • UnderEnglishlaw, cousinsmaymarry

22. Affinity • Therelationshipcreatedbymarriagebetween a husbandand his wife’s bloodrelatives or between a wifeand her husband’s bloodrelatives • Restrictionsbased on theunityofhusbandandwife

23. Marriage (Prohibited Degrees of Relationship) Act, 1986: a parent-in-law • A person (X) canonlymarry his formerspouse’s parent (Y) if: • X and Y are overthe age of 21 • Themarriage is solemnisedafterboth X and Y’s spouseshavedied (B v UK)

24. Marriage (Prohibited Degrees of Relationship) Act, 1986: a stepchild A step-parentcanmarrythechildofaformerspouseif 1) bothparties are aged 21 or overand 2) theyoungerpartyhasnotbeen a childofthefamilyinrelation to theotherwhileunderthe age of 18 If a step-parentactsinaparental role towards a stepchild, thetwocannevermarry

25. 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

26. Void marriage Ifeitherparty is undersixteen Ifparties are relatedbyblood: consanguinity If at the time ofthemarriageeitherpartywasalreadylawfullymarried Iftheparties are notrespectively male andfemale

27. Voidable marriage • Validinitially, but maybe set asidebecauseof: • Inability or wilfulrefusal to consumate • Lackofdueconsent; Duress (coercion) • Mistake as to identity • Mentalincapacity (unsoundmind)

28. Duress At one time it wasthoughtthatitwasonlypossible for duress to render a marriagevoidableiftherewasathreat to ‘life, limb or liberty’ The Court ofAppealinHirani v. Hiranisuggestedthatthe test for duressshouldfocus on theeffectofthethreatratherthanthe nature ofthethreat

29. Unsoundness of mind Onlyif it exists at the time ofthemarriage Marriagewillnotbevoidifsomeonebecomesmentallyillafterthemarriage Voluntaryintoxicationshouldnotrender a marriagevoidable

30. Effects of a decree of nullity A childofavoidmarriage is treated as legitimatedue to theLegitimacyAct 1976, as longas at the time ofthemarriageeither (or both) partiesreasonablybelievedthatthemarriagewasvalid

31. Effects of a decree of nullity Due to theMatrimonialCausesAct 1973 on granting a decreeofnullity, the court hasthe power to makeancillaryrelieforderstothe same extent as if a divorceorderwasbeingmade

32. 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

33. 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”

34. 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)

35. 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.

36. 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

37. 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

38. Results • Thegovernmenthastakensteps to bringthelawintoconformitywiththeConvention • Oncetherelevantordertakes place, it willbepossible for a man to marry his formerdaughter-in-law (or a woman her formerson-in-law) withoutthenecessityofthepartieswaiting for thedeathsoftheirformerspouses

39. 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

40. Held: • Theparents’ threats had destroyedtherealityofthepetitioner’s consent to themarriage, whichwouldthereforebeannulled

41. The effect Those who haveundergonearrangedmarriagesin face of a seriousthreathavethechoiceofeitheracceptingtheircultureandvalidityofthemarriage or acceptingthedominantculture’s viewthatmarriageshouldbemadevoidable Anappropriatecompromisebetweenrespectingtheculturalpracticeofarrangedmarriagesandrespectingpeople’s right to choosewhomtomarry

42. 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

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

44. Recent developments • Same-sex marriage • Serial monogamy • Living apart together

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

46. Legal terms • Bar • Legal impediment • Bar to marriage • Zapreka za brak

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

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

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

50. 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