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, a privilegedsexualaffiliation, a relationshipofhierarchyandsubordination, a meansofself-fulfilment, a socialconstruct, a culturalphenomenon, a religious mandate, aneconomicrelationship, thepreferredunit for reproduction, a way to ensureagainstpovertyanddependence on the state, a wayoutofthebirthfamily, therealizationof a romantic 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 andshouldbe 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. Social perspective Subjugationofwomen (conservativeview):“a publicformoflabourofrelationshipbetweenmenanedwomen, whereby a womanpledges for life (withlimitedrights to quit) her labour, sexualityandreproductivecapacity, andreceivesprotection, upkeepandcertainrights to children” Some: thatmarriagecanberegarded as subversive, protectingindividualsfromthepowerofthestateandthechurch.

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 signofprogressionof a relationship 4% children 1% religion 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 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)

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

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

18. 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

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

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

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

22. 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)

23. 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

24. 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

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

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

27. 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

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

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

30. 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

31. 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

32. 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”

33. 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)

34. 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.

35. 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

36. 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

37. 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

38. 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

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

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

41. 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.

42. Held: • The court granted a decree of nullity: W had not truly given her consent to any such marriage. • Themarriagewasvoid, as thepetitioner had notunderstoodthe nature oftheceremony

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

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

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

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

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

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

49. 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

50. Legal terms • Solemnize the marriage • Sklopiti brak