Q3 Describe the legal formalities required for a valid marriage or civil partnership to proceed together with an explanation of the disqualifications or impediments (apart from lack of consent) that might render the proceedings void.
Marriage (s) Act 1977 laid down conditions and impediments constituted in marriage.
Conditions – AGE S1 (In MSA 1997 and CSA 2004 s86) Individuals are free to marry in Scotland as long as they are 16 + on or before date of marriage. You can get married if you and your partner are of the opposite sex, you are both aged 16 years or over and are either single, widowed, divorced or have dissolved a civil partnership.
You cannot marry in Scotland if you are: – Already married or in a civil partnership. You and your partner must both be single, widowed, divorced or have dissolved a previous civil partnership, under 16 years old, of the same sex (although same sex marriage will shortly be introduced in Scotland), but a same sex couple can register their relationship. The laws are different in Florida check out the system and provisions
Forbidden Degree – S2 – Marriage may take place as long as the individual are not within prohibited degree of relationship.
- Consanguine – blood related (not allowed)
- Adoptive – Adoptive parents cannot enter into a marriage with their adoptive children however adoptive siblings may
- Affinitive – created through marriage or cp – person may not marry/cp with the ex-spouse/cp with her parent.
S5 – Provides legal impediments to marriage which may render it void.
S4 (d) parties cannot understand the nature of the marriage or incapable of consenting to marriage (e) Parties must be opposite sex (f) only valid when it would be valid in a place where parties are domiciled. (If not in scot) applies to both parties.
Corberrtt v Corbertt 1971 – same sex – The court granted a decree of nullity to the husband of a post-operative male-to-female transsexual on the grounds that the respondent ‘is not, and was not, a woman at the date of the ceremony of marriage, but was, at all times, a male’: Two men married, when relationship collapsed, April sued for divorce and other man pleaded marriage was null and void as both men. Held, April was not “female” – could not perform essential role of female. Natural not artificial vagina. No divorce as no marriage.
Void – Marriage is a contract like any other, it requires consent. At common law marriage = null if parties didn’t truly consent to marriage. Now in a statuary basis found in S20 Marriage (s) Act 1997
Mental Incapacity S20 (3) 1997– Marriage is void if at the time of the ceremony a party is incapable to understand the nature of marriage or consenting of marriage. Could arise from mental illness or mental impairment. However, depression doesn’t prevent giving valid consent, granted necessary capacity is present.
Error S20 (2) – Consent in error = void. Error of nature of ceremony mistaking ceremony for brothel for e.g. error to identity only operation al in impersonating cases.
Mclead v Adams 1920 – No error arose, defender deserted from army, met woman using false name, married her and ran off with her savings. Held, no error to identify as she married man before her.
Lang v Lang 1921 – man married woman on pretence child she was carrying was his. Turns out it wasn’t. he sought declaration of invalidity on basis of false pretence. Held concealment of pregnancy was not fraudulent misrepresentation. The declaration of invalidity was refused.
Duress S20 1997 – A marriage will be void if at the time of ceremony a party was capable of consenting and purported to give consent but ONLY as under duress. At common law, void if consent is given in a state of fear or force. The test is subjective
Mahmood v Mahmood 1993 – 21 yr old Pakistan girl. Parents arranged marriage without telling her. Arranged it 5yr before she was told to marry. She protested but family made threats (cut her off financially etc) Held, illegal duress – as consent was not genuine, she was afraid.
Sohrab v Khan 2002 – 16yr old girl married man to avoid man’s deportation. Family again made threats. Marriage vitiated due to lack of consent. Also void as marriage schedule at time rushed to Glasgow, the marriage schedule was obtained AFTER the ceremony. They registered after ceremony too.
Pre-Gender Recognition act 2004 – sex recognised at birth and fixed (biological)
Bellinger v Bellinger 2004 – held, like Corbett, biological criteria could only be used. This raised problems for transsexuals. Both men so marriage was void. They issued a declaration of incomparability of Article 12+8. Mrs Bellinger, a trans-sexual female who had been born and registered as a male at birth, could not validly contract a marriage with another male. Trans-sexual people are to be distinguished from inter-sexual people. Society and the law had moved on since the case of Corbett, and the case of Goodwin had superseded the CA decision in this case. However, though the law needed to be changed, it was not for the House to do so.
Goodwin v UK 2002 – Breach of Article 8 and 12 too. Both these cases lead to…
Gender Recognition Act 2002 – Person over 18 can apply for a certificate. A transsexual person is considered to be of the sex s/he was given at birth unless s/he has a gender recognition certificate (GRC). A GRC shows that the transsexual person has legal recognition that s/he has a different gender identity to the one s/he was given at birth. This means that s/he can live in her/his acquired gender and marry someone of the opposite gender. Without a GRC, she remains in law a man and can only marry a woman. CP too and is also a ground for divorce. Parents remain parent’s despite “sex change. The law is changing and, from 16 December 2014, married people will be able to change their gender without having to end their marriage.
Impotence – Only ground to have marriage made Voidable not for CP however. This is being unable to have sex. Must exist at time/date of marriage. + Incurable. + Permanent. If curable cant get decree until treatment is given. If refuses treatment then decree given.
F v F 1945 – Mr F raised action to have marriage declared nullity on ground of his own impotency. Held, only 3rd parties excluded from raising actions for impotency, so Mr F could rely on his own condition to have marriage set aside.
You can get married by a civil ceremony or a religious ceremony. A religious ceremony can be conducted by an approved celebrant from a church or religious body or by an approved celebrant from other belief systems such as Humanism.
In all cases, the following legal requirements must be met:-both you and your partner must complete a marriage notice the marriage must be conducted by either a registrar or an approved celebrant;
in the presence of two witnesses aged 16 or over at the end of the ceremony, you and your partner, the two witnesses and the person who conducted the ceremony must all sign the Marriage Schedule