Tutorial 2-Marriage, Nullity and CPs (Family Law) PDF

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Very basic work-use as a preliminary guide only...

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Tutorial 2: Marriage, Nullity and Civil Partnerships Essential Reading: Diduck and Kaganas, Family Law, Gender and the State: Text, Cases and Materials, 3rd Edition – Chap. 2 Herring, Family Law, 8th Edition - Chap. 3 Further Reading (You are expected to read at least one of the following articles for Q3) F. Shariff, ‘Towards a transformative paradigm in the UK response to forced marriage: excavating community engagement and subjectivising agency.’ Social and Legal Studies, 2012, 21(4), 549-565. Working Group on Forced Marriage, A Choice by Right (2000) London, Home Office Gill and Anitha, ‘The illusion of protection? An analysis of forced marriage legislation and policy in the UK’ Journal of Social Welfare and Family Law (2009) 31: 257 M.Enright, ‘Choice, Culture and the Politics of Belonging: The Emerging Law of Forced and Arranged Marriage,’ Modern Law Review, (2009) Vol. 72, Issue 3, pp. 331-359 R. Hunter, ‘Constructing Vulnerabilities and Managing Risk: State Responses to Forced Marriage,’ in Regulating the International Movement of Women, S. A Fitzgerald (Eds) (2011), Routledge S.Choudhry, ‘Forced Marriage, the ECHR and the HRA’ in Forced Marriage: Introducing a social justice and human rights perspective: Zed Press (2011) Eds Gill and Anitha Questions: 1. Nadia, aged 15, has been tricked into visiting Moltinstan by her parents on the pretext of visiting family relatives. Once there, her parents force her to enter into a marriage with her 17-year-old cousin that is valid according to Moltinstanian law. She refuses to consummate the marriage and through the help of the local

British consulate is able to return to England. Advise Nadia on: (i) What she can do to get out of her marriage:  P v R (Forced Marriage: Procedure) 2003-apply for annulment when she returns to England, Courts can declare the marriage voidable as a result of duress and non-consummation of marriage (ii) What she can do to prevent her husband joining her in England:  Section 63A Family Law Act-Court can make an order to protect a person from being forced into marriage or in this case protect Nadia who has been forced into a marriage (iii) The possibility of bringing criminal charges against her parents:  Anti-Social Behaviour, Crime and Policing Act (2014):  Section 121 (3)-an offence for a person to practice any form of deception with the intention of causing another person to leave the UK, intending them to be subjected to a forced marriage outside the UK  Section 121 (9)-penalties up to 7 years’ imprisonment 2. Read: Heather Brook, ‘Zombie law: conjugality, annulment, and the (married) living dead’ (2014) 22 Feminist Legal Studies 49-66 (a) What does Brook mean when she argues that conjugality is a ‘zombie category’?  Brook argues that the married heterosexual couple as constructed in law is a zombie category- ‘Zombie categories must be reshaped and reimagined not just deconstructed and criticised’  Beck stated that sociological structures were becoming archaic-institutional fields ‘govern our thinking but are not really able to capture the contemporary milieu’ (b) Do you agree with Brook that the requirements for a valid marriage – particularly consummation – should be considered obsolete and be abolished?  Brook states that the requirement of consummation for a valid marriage is

an outdated notion- ‘demonstrate that certain frameworks of conjugality involve a kind of corporeal magic animating the privileged place of heterosexual marriage’ and is therefore ‘socially obsolete’ 3. In what circumstances, if any, is it permissible for parents to be allowed to have any involvement in the question of who their child marries? Can legal intervention help? Gill and Anitha, ‘The illusion of protection? An analysis of forced marriage legislation and policy in the UK’ Journal of Social Welfare and Family Law (2009) 31: 257  The Marriage Act 1949 and the Matrimonial Causes Act 1973 together constitute the law on marriage in England and Wales. Section 12c of the Matrimonial Causes Act 1973 states that a marriage shall be rendered void if ‘either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind, or otherwise’. A forced marriage may be dissolved by a decree of divorce justified predominantly on the grounds of ‘unreasonable behaviour’  Home Office Report 2000-aimed to distinguish between ‘arranged marriage (which represents a significant cultural tradition in numerous countries worldwide and in certain minority communities in the UK) and forced marriages, focusing on consent as the discriminating factor’- ‘media and policy-related discourses continue to frame the problem of forced marriage in cultural terms, rather than as a specific manifestation of a wider problem of violence against women’  “state and relevant authorities need to recognize that BME women’s experiences of coercion in matters of marriage are not coherent, explicit, easily identifiable, or clearly distinct from their experiences within other structures of inequality”  Sources must be provided for measures to prevent forced marriage and to fund ‘financially securing specialist service provisions’ 4. Read: Rebecca Probert, ‘A uniform marriage law for England and Wales?’ – [2018] CFLQ 259. (a) What reforms to the legal requirements of a valid marriage does Probert suggest?  In Hudson v Leigh, Bodey J drew on these earlier authorities to suggest four

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factors to be taken into account when deciding whether any given ceremony should be classified as a non-marriage: ‘Questionable ceremonies should . . . be addressed on a case by case basis, taking account of the various factors and features . . . including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.’ Significance of giving notice Significance of the place of celebration Significance of the officiant’s status The role of negative intentions

(b) Do you think that the proposals for reform that she makes will address adequately concerns about the complexity and uncertainty of the current rules on regulating marriage?...