This is an extract of our Marriage document, which we sell as part of our Family Law Notes collection written by the top tier of Oxford students.
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Marriage Non-marriages, void marriages and voidable marriages The presumption of marriage
If a man and a woman live together, believe themselves to be married, and present themselves as married, the law presumes that they are legally married o The policy behind this is that the couple believes themselves should not suffer the disadvantages of not being so
? Without there being clear evidence
? In many cases, the presumption can be rebutted by showing that they do not appear on the register of marriage The differences between...
...a void marriage and non-marriage o A void marriage is one where, although there may have been some semblance of marriage
? There is in fact a fundamental flaw in the marriage which means that it is not recognised as valid in law
? If the marriage is classed as void, the court has the power to make financial orders, redistributing property between the couple
Such powers are not available if the marriage if a nonmarriage o A non-marriage is one where there is some vague element of marriage, but is so far from actual marriage, is not even defective
? Gandhi v Patel : Indian couple married in Indian restaurant - in something of a party.
Held o That was not close enough to a marriage - there was no solemn element, just a party. o Telling the difference between the two
? Gereis v Yagoub : H and W wanted to marry in the Russian Orthodox tradition. The priest warned them that would not be a civil marriage, so this would need to be done in a civil ceremony as well. They chose just to do the religious ceremony. Ten years passed but they then separated.
Aglionby J: o This is a void marriage, not a non-marriage
? The ceremony had the hallmarks of an ordinary Christian marriage
? The parties regarded themselves to be married
? The couple held themselves out as a married couple
? Hudson v Leigh : Here there was a religious ceremony in South Africa with people watching. However they changed the words to show it was not a marriage and even announced that it was not
Held: o Purported to be a marriage? = No o Look like a marriage? = Possibly o View of officials and couple = Not marriage o View of people = Not marriage
? Therefore pointed to non-marriage
...a void and a voidable marriage
? A void marriage is one that in the eyes of the law has never existed
? A voidable marriage exists until it has been annulled by the courts
And if it is not annulled, then it will be regarded as valid o Legitimacy of children
? A child born to the parties in a void marriage would be technically illegitimate
Unless both parties reasonably believed at the time that they were married validly
? A child born into a voidable marriage is always regarded as legitimate o Who can assert the defect
? Any interested party can challenge a void marriage
? But only one of the spouses can assert a voidable marriage is void o Public interest vs. private interests
? Herring: This tells us that void marriages are based on some conception of public interest - e.g. under age of 16 - that court will intervene on
A voidable marriage = no public policy objection, but something wrong that is important enough that if parties care about it, can end it o So no trouble if no sex - not the law's business
? But could be if one part of couple cares about it The grounds on which a marriage is void
1. The couple are within prohibited degree of relationship o Consanguinity
? This is where the couple are related to each other in certain ways, such as:
? This also includes half blood relationships, but not cousins. o Affinity restrictions
? Marrying a stepchild is generally not permitted unless:
(1) Both parties are over the age of 21
(2) the younger party has not been a child of the family in relation to the other while under the age of 18 o Thus, if the step-parent has ever acted in a parental role towards a step-child, the parties can never marry.
? Marrying a parent-in-law used to be only permitted in limited circumstances, but it is now permitted
The old requirements were that o (1) Both parties are aged over 21 o (2) Both their previous spouses have now died
This was challenged by B+ L v UK: The UK argued that restrictions were necessary so as to ensure no sexual rivalry between parents and children. W and In-Law argued that there had been some cases where you could marry in these circumstances - but only with a special act of Parliament
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