Transcript Marriage13 [459 KiB]

Marriage
Unit 22
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Definition of marriage
Conditions for a valid marriage
Bars to marriage
Void and voidable marriage
Cases
Legal terms
Exercise
Definitions
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The legal union of a couple as a husband
and wife
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A contract based upon a voluntary private
agreement by a man and a woman to
become husband and wife
Definition
by Lord Penzance (Hyde v. Hyde)
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A voluntary union for life of one man and
one woman to the exclusion of all others
Conditions for a valid marriage
1) parties legally capable of contracting to
marry
 2) mutual consent or agreement
 3) an actual contract in the form prescribed
by law
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Conditions for a valid English
marriage
A valid English marriage must be:
 1) voluntary
 2) for life
 3) monogamous
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For life?
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Machinson v. Machinson: at the initiation of
marriage the intention of the parties must be
union for life
Bars to marriage
Youth (the age of consent; now 18, in the
past 21)
 Consanguinity (close blood relation)
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Void marriage
If either party is under sixteen
 If parties are related by blood:
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Age of Majority
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The Family Reform Act of 1969 has
lowered the age of majority to eighteen
Youth as a bar to marriage
If one of the parties is 16 or over, but under
18, any marriage performed will be valid if
the consent of both parents (or the parent
who has custody if they are divorced) is
obtained before the marriage is solemnized
 The consent need not be given in any
particular form; in the absence of positive
dissent it will be implied
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Consanguinity
1. Ascendants and descendants, e.g. parent
and child, grandparent and grandchild
 2.Brother and sister, uncle and niece,
nephew and aunt
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Affinity
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The relationship created by marriage
between a husband and his wife’s blood
relatives or between a wife and her
husband’s blood relatives
Marriage Act 1986
A man may not marry his grandmother,
aunt or niece
 A woman may not marry her grandfather,
uncle, or nephew
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Marriage Act, 1986
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A man may marry his mother-in-law if his
former wife and his former wife’s father are
both dead
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
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Voidable marriage
Valid initially, but may be set aside because
of:
 Lack of due consent
 Duress (coercion)
 Mistake as to identity
 Mental incapacity (unsound mind)
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Marriage as a contract
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Marriage is not like other contracts because the
parties:
1)cannot agree on the rules governing marriage
2)cannot agree what is to be regarded as a breach
of contract, nor what compensation should be paid
in case of such a breach (a different type of
contract: prenuptial agreement)
3) no time limit (must be for life)
Hyde v Hyde and Woodmansee
(1866)
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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
Hyde v Hyde
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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”
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)
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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.
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Held (ECHR)
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In placing such restrictions on the right to
marry, UK law was in violation of Art. 12
of the European Convention on Human
Rights
Article 12: Right to marry
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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
Results
The government has taken steps to bring the
law into conformity with the Convention
 Once the relevant order takes place, it will
be possible for a man to marry his former
daughter-in-law (or a woman her former
son-in-law) without the necessity of the
parties waiting for the deaths of their former
spouses
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Hirani v Hirani 1984
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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
Held:
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The parents’ threats had destroyed the
reality of the petitioner’s consent to the
marriage, which would therefore be
annulled
Mehta v Mehta 1945
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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
Held:
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The marriage was void, as the petitioner had
not understood the nature of the ceremony
Recent developments
Same-sex marriage
 Serial monogamy
 Living apart together
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Legal terms
Dissolution
 The legal termination of marriage by a
decree of divorce, nullity, or presumption of
death
 Dissolution of marriage
 = razvrgnuće braka
 dissolve
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Legal terms
Bar
 Legal impediment
 Bar to marriage
 Zapreka za brak
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Legal terms
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Valid
Valjan, pravomoćan, važeći
Valid marriage
Važeći brak
Void
Having no legal effect
Ništavan, nevažeći
Void marriage
Ništavni brak, nevažeći brak
Legal terms
Voidable
 That can be annulled
 Poništiv, koji se može ukinuti
 Voidable marriage
 Poništivi brak
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Legal terms
Annulment
 A declaration that a marriage was never
legally valid
 Annulment of marriage
 Poništaj braka
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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
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Legal terms
Solemnize the marriage
 Sklopiti brak
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Legal terms
Custody
 Rights and responsbilities that parents (and
sometimes others) have in relation to a
child; replaced by the concept of parental
responsibility introduced by the Children
Act 1989
 Skrbništvo nad djecom
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Legal terms
Comply with
 Biti u skladu, postupiti po, udovoljiti čemu,
pridržavati se
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Legal terms
Duress /dju’res/
 Pressure, especially actual or threatened
physical force, put on a person to act in a
particular way. Acts carried out under
duress usually have no legal effect; a
contract obtained by duress is voidable
 (protupravna) prisila, prinuda
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Legal terms
Fraud
 A false representation by means of a
statement or conduct made knowingly or
recklessly in order to gain material
advantage. A contract obtained by fraud is
voidable on the grounds of fraudulent
misrepresentation
 Prijevara, obmana
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Legal terms
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Presumption
A supposition that the law allows or requires to be
made. Some presumptions relate to people, e.g.
the presumption of innocence and of sanity.
Others concern events, e.g. presumption of
legality
Pravna pretpostavka
Presumption of sanity
Pretpostavka ubrojivosti
Family law
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Family law is the body of law which
regulates family relationships, including
marriage and divorce, the treatment of
children, and money issues
Family Law: Exercise
Below are the main areas that Family Law
covers. Write one area above each text:
 Adoption, Child Custody, Children’s
Rights, Divorce, Estate Planning, Estates
and Trusts, Insurance, Marriage
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Adoption, Child Custody, Children’s Rights,
Divorce, Estate Planning, Estates and Trusts,
Insurance, Marriage
1. ____The process by which a legal parentchild relationship is created between
individuals not biologically parent and
child.
 2. ____The parents of a child born within a
marriage are joint guardians of that child
and the rights of both parents are equal
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Adoption, Child Custody, Children’s Rights,
Divorce, Estate Planning, Estates and Trusts,
Insurance, Marriage
3. _____Children are generally afforded the
basic rights embodied by the constitution
 4. _____As a result of this both parties’
status becomes single again.
 5. ______The process by which an
individual or family arranges the transfer of
assets in anticipation of death
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Adoption, Child Custody, Children’s Rights,
Divorce, Estate Planning, Estates and Trusts,
Insurance, Marriage
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6. ___Generally, a trust is a right in
property (real or personal) which is held in
a fiduciary relationship by one party for the
benefit of another. The trustee is the one
who holds title to the trust property, and the
beneficiary is the person who receives the
benefits of the trust.
Adoption, Child Custody, Children’s Rights,
Divorce, Estate Planning, Estates and Trusts,
Insurance, Marriage
7. ____ While types vary widely, their
primary goal is to allocate the risks of a loss
from the individual to a great number of
people.
 8. ____ A contract based upon a voluntary
private agreement by a man and a woman to
become husband and wife.
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CONDITIONAL SENTENCES
1. Open condition
 2. Hypothetical condition
 A) present
 B) past
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Open and hypothetical conditions:
meaning
Open condition: leaves unresolved the
question of the fulfillment or nonfulfillment of a condition, and hence also
the truth of the proposition expressed by the
main clause
 Hypothetical condition: conveys the
expectation that the condition will not be
fulfilled
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OPEN CONDITION: FORM
(If = ako)
If clause: present simple
Main clause: future (will/shall)
If he pleads guilty, he will spend a year in
prison.
If not = unless
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Unless he proves his innocence, he will
spend a year in prison
Hypothetical condition: present
(if = kad bi)
If clause: simple past
 Main clause: would/should + infinitive
(present conditional)
 If he pleaded guilty, he would spend a year
in prison.
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Hypothetical condition: past
(if = da)
If clause: past perfect
 Main clause: would have + past participle
(past conditional)
 If he had pleaded guilty, he would have
spent a year in prison.
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Three types of conditional sentences:
examples
1. If he commits a crime, he will be
punished.
 2. If he committed a crime, he would be
punished.
 3. If he had committed a crime, he would
have been punished.
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