Marriage

Unit 22Unit 22

Preview

What is marriage? Functional, psychological, political, religious What is marriage? Functional, psychological, political, religious perspectiveperspective

Why do people marry?Why do people marry? Definition of marriageDefinition of marriage Conditions for a valid marriageConditions for a valid marriage Marriage as a status or contractMarriage as a status or contract Bars to marriageBars to marriage Void and voidable marriageVoid and voidable marriage CasesCases Legal termsLegal terms ExerciseExercise

What is marriage?

““Marriage (…) can mean a legal tie, a symbol of commitment, a Marriage (…) can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a social construct, a cultural subordination, a means of self-fulfilment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the phenomenon, a religious mandate, an economic relationship, the preferred unit for reproduction, a way to ensure against poverty and preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining.” (Fineman relationship in which each term is based on bargaining.” (Fineman 2004)2004)

What is marriage?

„„The lack of firm and fixed ideas about what The lack of firm and fixed ideas about what marriage is and should be but an aspect of the marriage is and should be but an aspect of the alienation of modern man. And in this respect alienation of modern man. And in this respect the law seems truly to reflect the fact that in the law seems truly to reflect the fact that in modern society more and more is expected of modern society more and more is expected of human relationships while at the same time human relationships while at the same time social changes have rendered those social changes have rendered those relationships increasingly fragile.” (Glendon relationships increasingly fragile.” (Glendon 1989)1989)

Functional perspective

ChildrenChildren Regulation of private property and the Regulation of private property and the

creation of legitimate heirscreation of legitimate heirs

Psychological perspective

Common view of the worldCommon view of the world Modern intimate relationships – entered Modern intimate relationships – entered

into ‘for what can be derived by each into ‘for what can be derived by each person from a sustained association with person from a sustained association with another; …and…is continued only in so far another; …and…is continued only in so far as it is thought by both parties to deliver as it is thought by both parties to deliver enough satisfaction for each individual to enough satisfaction for each individual to stay within it”stay within it”

Social perspective

Subjugation of women (conservative view):“a public Subjugation of women (conservative view):“a public form of labour of relationship between men aned form of labour of relationship between men aned women, whereby a woman pledges for life (with women, whereby a woman pledges for life (with limited rights to quit) her labour, sexuality and limited rights to quit) her labour, sexuality and reproductive capacity, and receives protection, reproductive capacity, and receives protection, upkeep and certain rights to children”upkeep and certain rights to children”

Some: that marriage can be regarded as subversive, Some: that marriage can be regarded as subversive, protecting individuals from the power of the state protecting individuals from the power of the state and the church.and the church.

Religious perspective

Spiritual union between spouses on Spiritual union between spouses on marriage, with the spouses’ love reflecting marriage, with the spouses’ love reflecting God’s loveGod’s love

Some religions regard marriage as Some religions regard marriage as indissolubleindissoluble

Why do people marry?

42%: love42%: love 13%: a sign of commitment13%: a sign of commitment 9%: a sign of progression of a relationship9%: a sign of progression of a relationship 3%: don’t know3%: don’t know

Definitions

The legal union of a couple as a husband The legal union of a couple as a husband and wifeand wife

A contract based upon a voluntary private A contract based upon a voluntary private agreement by a man and a woman to agreement by a man and a woman to become husband and wifebecome husband and wife

Definitionby Lord Penzance (Hyde v. Hyde) A voluntary union for life of one man and A voluntary union for life of one man and

one woman to the exclusion of all othersone woman to the exclusion of all others

Conditions for a valid English marriage A valid English marriage must be:A valid English marriage must be: 1) voluntary1) voluntary 2) for life2) for life 3) monogamous3) monogamous

For life?

Machinson v. Machinson: at the initiation Machinson v. Machinson: at the initiation of marriage the intention of the parties must of marriage the intention of the parties must be union for lifebe union for life

Conditions for a valid marriage

1) parties legally capable of contracting to 1) parties legally capable of contracting to marrymarry

2) mutual consent or agreement2) mutual consent or agreement 3) an actual contract in the form prescribed 3) an actual contract in the form prescribed

by lawby law

Marriage as a contract

Marriage is not like other contracts because the Marriage is not like other contracts because the parties:parties:

1)cannot agree on the rules governing marriage1)cannot agree on the rules governing marriage 2)cannot agree what is to be regarded as a breach 2)cannot agree what is to be regarded as a breach

of contract, nor what compensation should be paid of contract, nor what compensation should be paid in case of such a breach (a different type of in case of such a breach (a different type of contract: prenuptial agreement)contract: prenuptial agreement)

3) no time limit (must be for life)3) no time limit (must be for life)

Bars to marriage

Youth (the age of consent; now 18, in the Youth (the age of consent; now 18, in the past 21)past 21)

Consanguinity (close blood relation)Consanguinity (close blood relation)

Age of Majority

The Family Reform Act of 1969 has The Family Reform Act of 1969 has lowered the age of majority to eighteenlowered the age of majority to eighteen

Youth as a bar to marriage

If one of the parties is 16 or over, but under If one of the parties is 16 or over, but under 18, any marriage performed will be valid if 18, any marriage performed will be valid if the consent of both parents (or the parent the consent of both parents (or the parent who has custody if they are divorced) is who has custody if they are divorced) is obtained before the marriage is solemnizedobtained before the marriage is solemnized

Youth as a bar to marriage

The choice of the age 16 reflects the policy The choice of the age 16 reflects the policy of the criminal law that it is unlawful for a of the criminal law that it is unlawful for a man to have sexual intercourse with a girl man to have sexual intercourse with a girl under 16under 16

Consanguinity: prohibited degrees

1. Ascendants and descendants: parent- 1. Ascendants and descendants: parent- child, grandparent-grandchildchild, grandparent-grandchild

2.Brother-sister, uncle-niece, nephew- aunt2.Brother-sister, uncle-niece, nephew- aunt Under English law, cousins may marryUnder English law, cousins may marry

Affinity

The relationship created by marriage The relationship created by marriage between a husband and his wife’s blood between a husband and his wife’s blood relatives or between a wife and her relatives or between a wife and her husband’s blood relativeshusband’s blood relatives

Restrictions based on the unity of husband Restrictions based on the unity of husband and wifeand wife

Marriage (Prohibited Degrees of Relationship) Act, 1986: a parent-in-law

A person (X) can only marry his former A person (X) can only marry his former spouse’s parent (Y) if:spouse’s parent (Y) if:

X and Y are over the age of 21X and Y are over the age of 21 The marriage is solemnised after both X The marriage is solemnised after both X

and Y’s spouses have died (B v UK)and Y’s spouses have died (B v UK)

Marriage (Prohibited Degrees of Relationship) Act, 1986: a stepchild A step-parent can marry the child of a former A step-parent can marry the child of a former

spouse ifspouse if 1) both parties are aged 21 or over and1) both parties are aged 21 or over and 2) the younger party has not been a child of the 2) the younger party has not been a child of the

family in relation to the other while under the age family in relation to the other while under the age of 18of 18

If a step-parent acts in a parental role towards a If a step-parent acts in a parental role towards a stepchild, the two can never marrystepchild, the two can never marry

Bigamy

A marriage celebrated between two A marriage celebrated between two persons, one of whom is at the time validly persons, one of whom is at the time validly married, is voidmarried, is void

The person who knowingly enters into such The person who knowingly enters into such a marriage is guilty of bigamya marriage is guilty of bigamy

Void marriage

If either party is under sixteenIf either party is under sixteen If parties are related by blood: If parties are related by blood:

consanguinityconsanguinity If at the time of the marriage either party If at the time of the marriage either party

was already lawfully marriedwas already lawfully married If the parties are not respectively male and If the parties are not respectively male and

femalefemale

Voidable marriage

Valid initially, but may be set aside because Valid initially, but may be set aside because of:of:

Inability or wilful refusal to consumateInability or wilful refusal to consumate Lack of due consent; Duress (coercion)Lack of due consent; Duress (coercion) Mistake as to identityMistake as to identity Mental incapacity (unsound mind)Mental incapacity (unsound mind)

Duress

At one time it was thought that it was only At one time it was thought that it was only possible for duress to render a marriage possible for duress to render a marriage voidable if there was a threat to ‘life, limb voidable if there was a threat to ‘life, limb or liberty’or liberty’

The Court of Appeal in The Court of Appeal in Hirani v. Hirani Hirani v. Hirani suggested that the test for duress should suggested that the test for duress should focus on the effect of the threat rather than focus on the effect of the threat rather than the nature of the threatthe nature of the threat

Unsoundness of mind

Only if it exists at the time of the marriageOnly if it exists at the time of the marriage Marriage will not be void if someone Marriage will not be void if someone

becomes mentally ill after the marriagebecomes mentally ill after the marriage Voluntary intoxication should not render a Voluntary intoxication should not render a

marriage voidablemarriage voidable

Effects of a decree of nullity

A child of a void marriage is treated as A child of a void marriage is treated as legitimate due to the Legitimacy Act 1976, legitimate due to the Legitimacy Act 1976, as long as at the time of the marriage either as long as at the time of the marriage either (or both) parties reasonably believed that (or both) parties reasonably believed that the marriage was validthe marriage was valid

Effects of a decree of nullity

Due to the Matrimonial Causes Act 1973 on Due to the Matrimonial Causes Act 1973 on granting a decree of nullity, the court has granting a decree of nullity, the court has the power to make ancillary relief orders to the power to make ancillary relief orders to the same extent as if a divorce order was the same extent as if a divorce order was being madebeing made

Hyde v Hyde and Woodmansee (1866) Mr and Mrs Hyde married in the Mormon Mr and Mrs Hyde married in the Mormon

community in Utah, which practised polygamy. community in Utah, which practised polygamy. He left the community, renouncing the Mormon He left the community, renouncing the Mormon faith. The authorities passed a sentence of faith. The authorities passed a sentence of excommunication against him and declared that excommunication against him and declared that his wife was free to marry again. She contracted a his wife was free to marry again. She contracted a marriage with Mr Woodmansee in Utah. Mr Hyde marriage with Mr Woodmansee in Utah. Mr Hyde sought divorce in the English courtssought divorce in the English courts

Hyde v Hyde

Lord Penzance: the marriage would not be Lord Penzance: the marriage would not be recognised by the English courts, even for recognised by the English courts, even for the purpose of granting a divorce. Marriage, the purpose of granting a divorce. Marriage, “as understood in Christendom, may…be “as understood in Christendom, may…be defined as the voluntary union for life of defined as the voluntary union for life of one man and one woman, to the exclusion one man and one woman, to the exclusion of all others”of all others”

Deficiences

Does not identify how marriage is different Does not identify how marriage is different from cohabitationfrom cohabitation

Not all marriages will last for lifeNot all marriages will last for life A lack of sexual exclusivity does not affect A lack of sexual exclusivity does not affect

the marital status of the parties (although the marital status of the parties (although adultery may lead to divorce)adultery may lead to divorce)

B and L v UK 2006

A relationship developed between B and L, A relationship developed between B and L, the latter being B’s former daughter-in-law. the latter being B’s former daughter-in-law. The marriage between L. and B’s son, C, The marriage between L. and B’s son, C, had already ended by divorce, as had that had already ended by divorce, as had that between B and C’s other parent, A. between B and C’s other parent, A.

B. and L. wanted to marry, but were B. and L. wanted to marry, but were informed they would be unable to do so informed they would be unable to do so until both C and A were dead.until both C and A were dead.

Held (ECHR)

In placing such restrictions on the right to In placing such restrictions on the right to marry, UK law was in violation of Art. 12 marry, UK law was in violation of Art. 12 of the European Convention on Human of the European Convention on Human RightsRights

Article 12: Right to marry

Men and women of marriageable age have Men and women of marriageable age have the right to marry and to found a family, the right to marry and to found a family, according to the national laws governing according to the national laws governing the exercise of this rightthe exercise of this right

Results

The government has taken steps to bring the The government has taken steps to bring the law into conformity with the Conventionlaw into conformity with the Convention

Once the relevant order takes place, it will Once the relevant order takes place, it will be possible for a man to marry his former be possible for a man to marry his former daughter-in-law (or a woman her former daughter-in-law (or a woman her former son-in-law) without the necessity of the son-in-law) without the necessity of the parties waiting for the deaths of their former parties waiting for the deaths of their former spousesspouses

Hirani v Hirani 1984

The petitioner: a 19-year-old Hindu girl. The petitioner: a 19-year-old Hindu girl. When her parents discovered she had a When her parents discovered she had a relationship with a Muslim man, they relationship with a Muslim man, they ordered her to break it off and marry a man ordered her to break it off and marry a man of their choosing or else leave home. She of their choosing or else leave home. She went through the marriage but then went through the marriage but then petitioned for nullity on the basis that she petitioned for nullity on the basis that she had not consented to ithad not consented to it

Held:

The parents’ threats had destroyed the The parents’ threats had destroyed the reality of the petitioner’s consent to the reality of the petitioner’s consent to the marriage, which would therefore be marriage, which would therefore be annulledannulled

The effect

Those who have undergone arranged marriages in Those who have undergone arranged marriages in face of a serious threat have the choice of either face of a serious threat have the choice of either accepting their culture and validity of the marriage accepting their culture and validity of the marriage or accepting the dominant culture’s view that or accepting the dominant culture’s view that marriage should be made voidablemarriage should be made voidable

An appropriate compromise between respecting An appropriate compromise between respecting the cultural practice of arranged marriages and the cultural practice of arranged marriages and respecting people’s right to choose whom to marryrespecting people’s right to choose whom to marry

Mehta v Mehta 1945

A UK resident W went through a ceremony A UK resident W went through a ceremony with H, an Indian, inBombay. The with H, an Indian, inBombay. The ceremony was conducted in Hindi, and W ceremony was conducted in Hindi, and W thought its purpose was to receive her into thought its purpose was to receive her into the Hindu faith; she learned afterwards that the Hindu faith; she learned afterwards that it was also a marriage ceremony. it was also a marriage ceremony.

Held:

The court granted a decree of nullity: W The court granted a decree of nullity: W had not truly given her consent to any such had not truly given her consent to any such marriage.marriage.

The marriage was void, as the petitioner The marriage was void, as the petitioner had not understood the nature of the had not understood the nature of the ceremonyceremony

Recent developments

Same-sex marriageSame-sex marriage Serial monogamySerial monogamy Living apart togetherLiving apart together

Legal terms

DissolutionDissolution The legal termination of marriage by a The legal termination of marriage by a

decree of divorce, nullity, or presumption of decree of divorce, nullity, or presumption of death death

Dissolution of marriageDissolution of marriage = razvrgnuće braka= razvrgnuće braka dissolvedissolve

Legal terms

BarBar Legal impedimentLegal impediment Bar to marriageBar to marriage Zapreka za brakZapreka za brak

Legal terms

ValidValid Valjan, pravomoćan, važećiValjan, pravomoćan, važeći Valid marriageValid marriage Važeći brakVažeći brak Void Void Having no legal effectHaving no legal effect Ništavan, nevažećiNištavan, nevažeći Void marriageVoid marriage Ništavni brak, nevažeći brakNištavni brak, nevažeći brak

Legal terms

VoidableVoidable That can be annulledThat can be annulled Poništiv, koji se može ukinutiPoništiv, koji se može ukinuti Voidable marriageVoidable marriage Poništivi brakPoništivi brak

Legal terms

AnnulmentAnnulment A declaration that a marriage was never A declaration that a marriage was never

legally validlegally valid Annulment of marriageAnnulment of marriage Poništaj brakaPoništaj braka

Legal terms

ConsentConsent Agreement by choice, by one who has the Agreement by choice, by one who has the

freedom and capacity to make that choice. freedom and capacity to make that choice. Contracts and marriages are invalid unless Contracts and marriages are invalid unless both parties give their consentboth parties give their consent

Odobrenje, pristanakOdobrenje, pristanak

Legal terms

Solemnize the marriageSolemnize the marriage Sklopiti brakSklopiti brak

Legal terms

CustodyCustody Rights and responsbilities that parents (and Rights and responsbilities that parents (and

sometimes others) have in relation to a sometimes others) have in relation to a child; replaced by the concept of parental child; replaced by the concept of parental responsibility introduced by the Children responsibility introduced by the Children Act 1989Act 1989

Skrbništvo nad djecomSkrbništvo nad djecom

Legal terms

Comply withComply with Biti u skladu, postupiti po, udovoljiti čemu, Biti u skladu, postupiti po, udovoljiti čemu,

pridržavati sepridržavati se

Legal terms

Duress /dju’res/Duress /dju’res/ Pressure, especially actual or threatened Pressure, especially actual or threatened

physical force, put on a person to act in a physical force, put on a person to act in a particular way. Acts carried out under particular way. Acts carried out under duress usually have no legal effect; a duress usually have no legal effect; a contract obtained by duress is voidablecontract obtained by duress is voidable

(protupravna) prisila, prinuda(protupravna) prisila, prinuda

Legal terms

FraudFraud A false representation by means of a A false representation by means of a

statement or conduct made knowingly or statement or conduct made knowingly or recklessly in order to gain material recklessly in order to gain material advantage. A contract obtained by fraud is advantage. A contract obtained by fraud is voidable on the grounds of fraudulent voidable on the grounds of fraudulent misrepresentationmisrepresentation

Prijevara, obmanaPrijevara, obmana

Legal terms

PresumptionPresumption A supposition that the law allows or requires to be A supposition that the law allows or requires to be

made. Some presumptions relate to people, e.g. made. Some presumptions relate to people, e.g. the presumption of innocence and of sanity. the presumption of innocence and of sanity. Others concern events, e.g. presumption of Others concern events, e.g. presumption of legalitylegality

Pravna pretpostavkaPravna pretpostavka Presumption of sanityPresumption of sanity Pretpostavka ubrojivostiPretpostavka ubrojivosti

Family law

Family law is the body of law which Family law is the body of law which regulates family relationships, including regulates family relationships, including marriage and divorce, the treatment of marriage and divorce, the treatment of children, and money issueschildren, and money issues

Family Law: Exercise

Below are the main areas that Family Law Below are the main areas that Family Law covers. Write one area above each text:covers. Write one area above each text:

Adoption, Child Custody, Children’s Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriageand Trusts, Insurance, Marriage

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage

1. ____The process by which a legal parent-1. ____The process by which a legal parent-child relationship is created between child relationship is created between individuals not biologically parent and individuals not biologically parent and child.child.

2. ____The parents of a child born within a 2. ____The parents of a child born within a marriage are joint guardians of that child marriage are joint guardians of that child and the rights of both parents are equaland the rights of both parents are equal

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage

3. _____Children are generally afforded the 3. _____Children are generally afforded the basic rights embodied by the constitutionbasic rights embodied by the constitution

4. _____As a result of this both parties’ 4. _____As a result of this both parties’ status becomes single again.status becomes single again.

5. ______The process by which an 5. ______The process by which an individual or family arranges the transfer of individual or family arranges the transfer of assets in anticipation of deathassets in anticipation of death

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage

6. ___Generally, a trust is a right in 6. ___Generally, a trust is a right in property (real or personal) which is held in property (real or personal) which is held in a fiduciary relationship by one party for the a fiduciary relationship by one party for the benefit of another. The trustee is the one benefit of another. The trustee is the one who holds title to the trust property, and the who holds title to the trust property, and the beneficiary is the person who receives the beneficiary is the person who receives the benefits of the trust.benefits of the trust.

Adoption, Child Custody, Children’s Rights, Divorce, Estate Planning, Estates and Trusts, Insurance, Marriage

7. ____ While types vary widely, their 7. ____ While types vary widely, their primary goal is to allocate the risks of a loss primary goal is to allocate the risks of a loss from the individual to a great number of from the individual to a great number of people.people.

8. ____ A contract based upon a voluntary 8. ____ A contract based upon a voluntary private agreement by a man and a woman to private agreement by a man and a woman to become husband and wife.become husband and wife.

CONDITIONAL SENTENCES

1. Open condition1. Open condition 2. Hypothetical condition2. Hypothetical condition A) presentA) present B) pastB) past

Open and hypothetical conditions: meaning Open condition: leaves unresolved the Open condition: leaves unresolved the

question of the fulfillment or non-question of the fulfillment or non-fulfillment of a condition, and hence also fulfillment of a condition, and hence also the truth of the proposition expressed by the the truth of the proposition expressed by the main clausemain clause

Hypothetical condition: conveys the Hypothetical condition: conveys the expectation that the condition will not be expectation that the condition will not be fulfilledfulfilled

OPEN CONDITION: FORM(If = ako)

If clause: presentIf clause: present simplesimple

Main clause: future (will/shall)Main clause: future (will/shall)

If he If he pleads guiltypleads guilty, he , he will spend a year in will spend a year in prisonprison..

If not = unless

Unless he proves his innocence, he will Unless he proves his innocence, he will spend a year in prisonspend a year in prison

Hypothetical condition: present(if = kad bi) If clause: simple pastIf clause: simple past Main clause: would/should + infinitive Main clause: would/should + infinitive

(present conditional)(present conditional) If he If he pleaded guiltypleaded guilty, he , he would would spend a year spend a year

in prison.in prison.

Hypothetical condition: past(if = da) If clause: past perfectIf clause: past perfect Main clause: would have + past participle Main clause: would have + past participle

(past conditional)(past conditional) If he If he had pleadedhad pleaded guilty, he guilty, he would have would have

spent a year in prisonspent a year in prison..

Three types of conditional sentences: examples 1. If he 1. If he commitscommits a crime, he a crime, he will be will be

punished.punished. 2. If he 2. If he committed committed a crime, hea crime, he would be would be

punishedpunished.. 3. If he 3. If he had committed a crimehad committed a crime, he , he would would

have been punishedhave been punished..