Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
The following is a more accessible plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
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
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
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 non-marriage
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 [2002]: Indian couple married in Indian restaurant – in something of a party.
Held
That was not close enough to a marriage – there was no solemn element, just a party.
Telling the difference between the two
Gereis v Yagoub [1997]: 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:
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 [2009]: 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:
Purported to be a marriage? = No
Look like a marriage? = Possibly
View of officials and couple = Not marriage
View of people = Not marriage
Therefore pointed to non-marriage
...a void and a voidable marriage
Validity
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
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
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
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
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
Consanguinity
This is where the couple are related to each other in certain ways, such as:
Parent-child
Grandparent-Grandchild
Brother-Sister
Aunt-Nephew
Uncle-Niece
This also includes half blood relationships, but not cousins.
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
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
(1) Both parties are aged over 21
(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
ECourtHR = fact that can do this by Act of Parliament, shows that no absolute bar is needed
If this is case, then must be an accessible route for everyone, not just the well-connected
So either there must be
an absolute bar, so no-one can do it
or some kind of committee where the parties justify their case in front of it
or do-away with bar altogether
UK decided to abolish bar in Marriage Act 1949 (Remedial) Order 2007 No 438
Adoption restrictions
An adoptive child and parent are within prohibited degree of relationships
And an adopted child cannot marry any of their birth relations
However, an adopted child can marry other relatives of their adopted parents, e.g. daughter of adopted parents.
Why should we stop people marrying in these circumstances?
Fear of genetic dangers
Child born to brother/sister is far more likely to have a genetic condition
But this would only explain the blood bar, not the affinity ones
AND can also ensure that a responsible couple with genetic testing would not give birth to genetically flawed child
Deech: if we’re worried about this, should extend the law to cousin marriages
Close relation marriage may undermine family
This may be based on protecting the child from risk
e.g. with step parent idea, you don’t want to confuse child etc.
Widespread instinctive moral reaction against it in nearly all cultures
So not just based on one society’s prejudices.
2. Both...
Buy the full version of these notes or essay plans and more in our Family Law Notes.
Family law notes fully updated for recent exams at Oxford, UK. These notes covers all the major LLB family law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London).
These notes are formed directly from a reading of the cases and main texts and are vigorous and concise.
Every major topic is dealt with in three ways:
A) One page summaries of important c...
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started