Annulment Summary and Structure PDF

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Annulment Summary and Structure. Condensed notes in exam answer structure....

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Annulment Introduction   

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Two ways to end a marriage: divorce or annulment Two ways for a marriage to be annulled: Per Lord Greene in De Reneville v De Reneville Void marriages s11 MCA 1973 o In the eyes of the law the marriage is not valid and never existed o No need to obtain a decree of nullity; thus free to marry others o Any person can apply to have a marriage void Voidable marriages S12 MCA 1973 o Valid and subsisting marriage in the eyes of the law, but certain aspects mean it can be treated as if it did not exist o Must obtain decree of nullity o Only parties to a marriage can apply for annulment Non-marriage o Sham marriage o A marriage so flawed it cannot eve be considered to be void

Non-Marriages   

No marriage at all; a marriage so flawed it cannot even be considered void No entitlement for decree of nullity so cannot apply for finance and property orders Hudson v Leigh: Bodey J emphasised test for non-marriage was flexible but provided nonexhaustive list for consideration o Did the ceremony purport to be a legal marriage? o Did it have the hallmarks of marriage? o Whether the key participants believed the ceremony gave rise to legal marriage o Perceptions of those in attendance

Creating a valid Marriage   

To create a valid marriage, both parties must have capacity to marry and the marriage must not fall foul of grounds listed in s.11 MCA 1971 (ie. Must not be a void marriage) Capacity: Re E: Sheffield County Council: understand the nature of the marriage contract

Void Marriages Matrimonial Causes Act 1973 S.11 – grounds on which a marriage can be void     

A(i) parties are within prohibited decree of relationship A(ii) either party is under 16 A(iii) parties have intermarried in disregard of certain formalities as to the formation of marriage B- either party was already married at time of marriage D- polygamous marriage outside of England or Wales, where either party domiciled in England or Wales

Prohibited degrees of relationship (s.11 (a)(i))  

Cannot marry: parent, grandparent, child, grandchild, sibling, aunt, uncle, niece, nephew. Cousins can marry

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In laws can marry B v UK Step-parent can marry step-child provided both are 21 + and the step-parent had not treated the step-child as a child of the family before the step-child reached 18

Marriage under age of 16 (s.11 (a)(ii)  

As a preliminary formality. If aged 16 or 17, must have consent from each parent with parental responsibility Absence of consent is unlikely to render a marriage void

Required Formalities s.11 (a) (iii)     

Must take place in a register office, religious building or approved premises (those approved by local authority for purpose of civil marriage) Religious building ‘a place of meeting for religious worship’ Religion: R v (Hodkin & Anor) ‘spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe Must be conducted by a registered person Must be in the presence of minimum 2 witnesses

B – Parties already Married 

Hyde v Hyde – ‘one man and one women to the exclusion of all others’

Voidable marriages S12 a and b: non-consummation 

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A: incapacity of either party to consummate o Physical: must be permanent and incurable o Psychological: Sing v Sing ‘an invincible repugnance to the R due to psychiatric or sexual aversion’ B: wilful refusal to consummate o Horton v Horton: ‘a settled and definite decision not to consummate, without just excuse’. Mere dislike is not enough. DE v AG: consummation must be ‘ordinary and complete and not partial and imperfect’ Full penetration for a reasonable period of time (W v W) but does not require climax (R v R). it is the fact of intercourse, not whether it is qualitatively satisfactory (S v S)

C – Lack of consent   

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Hyde v Hyde: Lord Penzance ‘a voluntary union’ Did not validly consent due to duress, mistake or unsoundness of mind Duress o Hirani v Hirani: Per Ormrod: whether the threats, pressure or other acts were sufficient to ‘destroy the reality of consent and overbear the will of the individual’. This is a subjective test considering the particular petitioner. Mistake o Identity of the person, not his attributes Ogonwomoju o Nature of the ceremony, eg believing it is an engagement ceremony Mehta v Mehta

D-H

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D – Mental Disorder E – R suffering from VD F – Pregnancy by another man at time of marriage G – Where a party is issued with an interim gender recognition certificate during marriage. I.e sex change during marriage H – At the time of marriage one party did not know that the other used to be a different gender

Bars to Relief     

S.13 MCA Nullity petition must be brought within three years of marriage, excluding consummation grounds For VD and pregnancy grounds, the petitioner must have been unaware at the time of marriage For G, petition must be brought within 6 months of issue of certificate Bar on approbation for voidable marriages: no decree where the petitioner knew he had the option to seek annulment, but led R to believe he would not do so, and that it would be unjust on R for the decree to be granted...