Nullity
What is a family? Office for National Statistics...
"In 2017, the most common family type in the UK was the married or civil partner couple family (12.9 million families).... Opposite-sex couples were most likely to be in married couple families whereas same-sex couples were most likely to be in cohabiting couple families. This is likely to be because civil partnerships and marriages between same-sex couples in particular, are relatively new legal union statuses... A family is a married, civil partnered or cohabiting couple with or without children, or a lone parent, with at least one child, who live at the same address. Children may be dependent or non-dependent." ONS Families and Households:2017
The Classic Definition of Marriage: Hyde v Hyde (1866)
"as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others"
Civil Partnerships?
'A civil partnership is a relationship between two people of the same sex...(a) which is formed when they register as civil partners of each other' - s1 Civil Partnership Act 2004... An 'equality' measure for same-sex couples, modelled on rights and obligations between spouses. Initially a purely legal (civil) status, not religious, but following Equality Act amendments it is possible to have a 'religious' CP in approved premises.
What did the Law Commission discover?
'Designed to meet the needs of the early 19th century, marriage law does not cater adequately for the many faiths and non-religious beliefs that make up 21st century society. It is also overly restrictive, with where and how marriages can take place being tightly regulated. Many people would like the opportunity to marry somewhere more personal or meaningful to them, including outdoors, and are prevented by the current legal framework. There is a lack of clarity, too, which can make it difficult to know whether a valid marriage has taken place or not. This uncertainty has led to some people unexpectedly finding that their marriage is not legally recognised'....
Separation + Consent, s1(2)(d)...
'Living apart' Separate household, but parties can be living together under one roof... Requires mental attitude not to return to the marriage, living at a relative's house - trial separation not enough... Santos v Santos [1972] Fam 247 CA held that the marriage is only at an end when at least one party recognises that the relationship is over... Mouncer v Mouncer [1972] 1 All ER 289, the parties failed to show separate households because the parties still ate meals together (with their children) and wife still cooked and did h's washing even though they slept in separate bedrooms...
Transgender litigation, e.g. Goodwin v UK
'it is artificial to assert that post-op transsexuals have not been deprived of the right to marry as ... they remain able to marry a person of their former opposite sex. The applicant ... lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed.'
Matrimonial Causes Act 1973
(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent. (4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to [section 5] below, grant a decree of divorce.
Civil Partnership Act 2004 S.3 (eligibility), not eligible to register as CPs of each other if -
(a) Parties not of the same-sex (b) Either is married/has civil partner (c) Either under 16 (d) Within prohibited degrees See Part 1, Sch 1 CPA 2004.
MA 1949, s.78, as amended.
* 'lived in same household and treated by other as child of his or her family'
Hyde v Hyde: 4 criteria:
1. Voluntary - see duress/consent next week 2. For 'life' - divorce statistics suggest otherwise, median length of a marriage before divorce 11.7 years... 3. Monogamous - still recognised as a valid requirement... 4. Heterosexual - not necessarily - Marriage (Same-Sex Couples) Act 2013... Further reading: See S.Poulter and R.Probert on tutorial sheet.
Matrimonial Causes Act 1857
1857 Act passed in response to criticism of the cost and delay under Act of Parliament method.... 1857 Act reformed law of divorce moving litigation from ecclesiastical courts to civil courts.... Created the Court for Divorce and Matrimonial Causes which had jurisdiction to issue decrees of dissolution of marriage, nullity etc. But did not change the principles upon which divorce could be granted...
Swinging Sixties...
1963 - Leo Abse MP's Bill - Contained a provision to allow divorce after 7 years' separation... Did not become law but was influential because Archbishop of Canterbury subsequently announced in the House of Lords that a Committee would be appointed to investigate the formulation of 'breakdown of marriage' Report of this committee was the catalyst for change
Schedule 1 Marriage Act 1949
1st cousin marriages ARE permitted...
What 'facts' are used....?
2017- as in previous years most petitions filed by wives - 61% (101, 675 opposite-sex divorce petitions).... Fault -based: Behaviour: 47,407 - 46.6% Adultery: 10,623 - 10.4% Desertion: 475 - 0.5% 2 facts - behaviour + adultery - 489 .05% Non-fault: 2 years separation+ consent:.27,058 - 26.6% 5 years separation: 15,623 - 15.4%... Total: 101, 675 - ONS - 2017 Statistics....
Civil Partnerships
A CP is created when each partner has signed, in presence of CP registrar and two witnesses, the CP document that has been issued to them (s.2(1) & (7(1)) ~ i.e. no 'requisite words' unlike marriage ceremony....
The nature of divorce...
A divorce order brings to an end the 'legal' status of marriage... Person filing divorce petition - 'Petitioner'; person who is being 'divorced' - 'Respondent'... Thereafter, neither party has the legal rights of marriage, or owes the legal duties of a spouse (but once a parent, always a parent....) The divorce courts have extensive powers to make financial/other orders, but once the divorce is final, the rights of the parties flow from the order and not from the fact that they were once married to each other Hence the importance of 'severance' etc...
R(Steinfeld and Keidan) v SSID
A heterosexual couple have won their legal bid for the right to have a civil partnership instead of a marriage.The Supreme Court unanimously ruled in favour of Rebecca Steinfeld, 37, and Charles Keidan, 41, from London.The court said the Civil Partnership Act 2004 - which only applies to same-sex couples - is incompatible with the European Convention on Human Rights.Ms Steinfeld said she hoped the government does the "right thing" and extends civil partnerships to all.
LCD, Looking to the Future: Mediation and Divorce (1995)
A modern divorce law should: Support institution of marriage Practical steps to prevent irretrievable breakdown Ensure parties understand consequences of divorce Where divorce unavoidable, minimise bitterness and hostility and reduce trauma for children Minimise cost to parties and taxpayer
Schedule 1 Marriage Act 1949, part 1: kindred(consanguinity rules)....
Adoptive child Former adoptive child Adoptive parent Former adoptive parent Parent Child Sibling Grandchild Grandparent Parent's sibling Sibling's child 'Sibling' (brother or sister) means full & and half-sibling
Criticism of MCA 1857...
Adultery was the only matrimonial offence... A legal remedy only available if the 'innocent' petitioner could establish that the respondent had committed adultery and the petitioner was prepared to bring a petition... If respondent 'cruel' but faithful- no divorce - only judicial separation... If respondent deserted - no remedy Many couples legally married but in a dead relationship...
Marriage (Prohibited Degrees of Relationship) Act 1986
An Act to make further provision with regard to the marriage of persons related by affinity.-Marriage between certain persons related by affinity not to be void. (1)A marriage solemnized after the commencement of this Act between a man and a woman who is the daughter or grand-daughter of a former spouse of his (whether the former spouse is living or not) or who is the former spouse of his father or grandfather (whether his father or grandfather is living or not) shall not be void by reason only of that relationship if both the parties have attained the age of twenty-one at the time of the marriage and the younger party has not at any time before attaining the age of eighteen been a child of the family in relation to the other party. (2)A marriage solemnized after the commencement of this Act between a man and a woman who is the grandmother of a former spouse of his (whether the former spouse is living or not) or is a former spouse of his grandson (whether his grandson is living or not) shall not be void by reason only of that relationship.
Later at Strasbourg: Schalk & Kopf [2011] GCR 650 -
Art 12 to subject to margin of appreciation given lack of consensus in Europe; but Art 8 does now protect same-sex relationships (before only 'private life')
MCA 1973: Process - From Court Hearing to Special Procedure...
At the outset - 85% of hearings lasted only 10 minutes as most divorces were undefended... 1973 'Special Procedure' for undefended divorces on basis of consensual separation where no children involved 1977 All undefended divorces, regardless of fact relied on, or whether children were involved... 1989 - only 285 (of 150, 872), divorces proceeded to a hearing... Since 2010 - steady figures - approx 98% divorces 'uncontested' ... Now - purely admin exercise (more detail next week)...
Entry into a valid marriage
Both parties must have capacity to contract a marriage AND Must adhere to requisite formalities Matrimonial Causes Act 1973, s.11 Also, Marriage Act 1949 overseas marriage? ~ 'lex loci celebrationis' See further foreign marriage and divorce coverage - week 5...
Civil Partnership
Civil Partnership Act 2004 Gender Recognition Act 2004
Nature of marriage?
Contract Reciprocal obligations? See Munby J in Sheffield v E [2004] But restrictions on extent to which couples can govern entry and exit ... Status Now belong to a 'class of persons' c/f need for lobbying for equality? Political or normative messages about what or whose relationships 'count'.
Behaviour: Owens v Owens [2018] UKSC 41...
Couple married in 1978, two children of the marriage (now adult)...Split up in February 2015... Wife filed a s1(2)(b) MCA 1973 petition May 2015, citing H's behaviour -he prioritised work over the family, inflexible, missed holidays, special occasions; lack of love and affection shown to wife; H suffered mood swings and argued with W, upsetting her; H unpleasant and critical of W in front of other people, making her upset and embarrassed. Couple have lived separate lives for many years.... Typical sorts of reasons, and usually no problem, a decree nisi would be prounced, but.... H chose to defend the petition, unwilling to accept that the marriage had broken down irretrievably.... In response W added in more behaviour examples... Case listed for hearing - A selection of some of the 'incidents' considered by Tolson, J, 'In reality I find that the alleged episodes of unreasonable behaviour in this petition - all of them - are at best flimsy...I am satisfied that the wife has exaggerated the context and seriousness...They are all, at most, minor altercations of a kind to be expected in a marriage.' [para 46] .Divorce denied. Decision upheld by Court of Appeal and Supreme Court.... (More on this case to follow)...
Cases: Cleary v Cleary [1974]
Cross petitions (Both parties filed for divorce).... W alleging 'behaviour' H alleging 'adultery' Heard on H's undefended suit (i.e. wife did not deny the adultery)... Court of Appeal: only 2 things to prove, no link required Adultery Intolerability Held that the 'fact' is established if the petitioner genuinely finds it intolerable to live with the respondent, even if the adultery did not play a significant part in the marriage breakdown...
Myth of 'common law marriage'
Despite extensive media reporting using this phrase no such thing exists in England and Wales. Until the 18th century, it was possible for couples to enter into clandestine or secret marriages by consent, followed by consummation, but that was banned in the Marriage Act 1753 that required certain formalities before a marriage would be valid.
Available for same-sex couples who can choose whether to enter a CP or marriage... CPs have not therefore been extended to heterosexual couples ...
Despite various legal challenges R (Steinfeld) v Secretary of State for Education [2016] EWHC 128 (Admin)... Challenge upheld by Supreme Court, R (Steinfeld) v SSID, [2018] UKSC 32 Campaigns - e.g. Equal Civil Partnerships Campaign... Why? Lots of reasons, including Stonewall's claim that lesbian and gay people have a 'special and unique status'.... Church of England, to do so 'not in the broader interests of strengthening marriage as an institution'... Government 'not clear at to what detriment opposite sex couples suffer by not having access to CPs...'
Marriage
Divorce
Reform: Matrimonial Causes Act 1937...(A.P.Herbert's Act)
Divorce available if: Adultery Cruelty Desertion for three years or more; AND Incurable Insanity: 'new' 'NO FAULT' ground Gender equality, exactly same for husband and wife But no divorce petition within three years of marriage...
Post-WWII campaign for reform...
Divorce explosion after the end of WWII... 1939 - 8,517 divorces WWII- 'marry in haste, repent at leisure'... 1947 - 60,254 divorces Law still caused hardship - if the 'innocent' partner refused to petition for divorce the marriage could not be brought to an end even if the parties had lived apart for years, or even if they had never lived together Result - 'stable illicit unions' long-term cohabitees unable to marry, due to one or both parties being married to somebody else, problematical because children of such relationships illegitimate, stigmatised the children... Mounting pressure to have a divorce law so that marriages that had ceased to exist in fact could be brought to an end in law....
More statistics...
Divorce more likely to occur during first 10 years of marriage... About 42% marriages end in divorce.... 2017 - median age for divorce -in opposite-sex couples - 46.4 men; 43.9 women... Average duration of a marriage - 12.2 years 19% of men and women divorcing in 2016 had a previous divorce... Trend towards big increases in divorces amongst older couples(silver splitters) 2013: 40 -49 - 20,606; 60+ - 9,865... 2014 - 84,969 children of marriages ending in divorce Approx. 50% divorces at least one child under 16.... 2017 - 62% cases, wife was the Petitioner...
A short history lesson - before 1857
Divorce only by Act of Parliament, no court had the power to grant a decree of divorce terminating a valid marriage... Ecclesiastical courts could annul marriages and grant decrees of 'divorce' (no longer married in 'the eyes of God'...) A mensa et thoro relieved the parties of the duty to live together but neither was free to remarry.... Divorce only by Act of Parliament provided petitioner already had the separation recognised in ecclesiastical court on grounds of adultery And received a suit for damages from accomplice Petition to Parliament Very few people divorced - too difficult for most....
Pressure for reform...
During the post-war period, widely-held notion that the existence of so many broken marriages was actually more damaging to the institution of marriage than reform of the law of divorce... Various unsuccessful attempts to introduce divorce bills that included making separation a ground for divorce... Widespread public acceptance that things needed to change... But resistance by the Church of England...
Sheffield v E (2004) EWHC 2808
E, woman aged 21, mental capacity = 13yrs Vulnerable? Cohabiting with S, male aged 37, reported history of sexually violent crimes (against others, not E) E & S planned to marry, Local Authority brought proceedings under High Court's inherent jurisdiction, queried whether E had capacity to contract into marriage? High Court: Munby J considered appropriate test to assess capacity for marriage Marriage = a simple contract, 2 key Questions: Did E understand nature of marriage contract? Did she understand duties and responsibilities that normally attached to marriage? Case remitted for consideration...
Marriage Act 1949 (Remedial) Order SI 2007/438
Enacted March 1 2007 In order to remedy this incompatibility the provisions of the 1949 Act forbidding the marriage of a person to the parent of his former spouse and the marriage of a person to the former spouse of his child are repealed by article 2(a) of this Order. i.e., Part 3 Schedule 1 MA 1949 repealed.
5 years separation and no consent - s1(2) (e) MCA 1973....
For cases where one party will not consent to the divorce.... Requires separation for a continuous period of no less than five years... Unless the Supreme Court grant Mrs Owens' appeal later this year, this is the only fact upon which she can obtain a divorce if her husband continues to withhold his consent. This will mean that she will have to wait until February 2020... '...Parliament has decreed that it is not ground for divorce that you find yourself in a wretchedly unhappy marriage, though some people say it should be.' Munby LJ at para 84...
Section 5 MCA 1973, where a petitioner relies on - 5 year separation basis under s1(2)(e ) MCA 1973, but a divorce would cause
Grave hardship to respondent', AND it would be 'Wrong in all the circumstances to dissolve' the petition may be denied. Court looks at whether dissolution of marriage would cause grave financial/other hardship. Hardship only from the divorce, not marriage breakdown ( rare) ...
Divorce Reform Act 1969
Ground - only one: irretrievable breakdown of the marriage Proved by the existence of one of five 'facts' Adultery Behaviour Desertion Separation 2 years with consent Separation 5 years Investigative process regarded as impracticable, and potentially humiliating to parties... Received Royal Assent - October 22 1969 (Came into force 1971) From 1971 when this Act came into force, couples could separate and agree to divorce - reliance for the first time on a no-fault fact.... Significant because this fact was trying to move the law away from the matrimonial offence model that had originated from the times when divorce was within the ambit of the ecclesiastical courts.... No fault - no blame, should mean less conflict between the parties, good for them and any children of the family... Consolidated into Matrimonial Causes Act 1973 - our current law!
Hadjimilitis v Tsavliris [2003] 1 FLR 81
H claimed marriage not irretrievably broken down but also alleged W had married him as a charade to get his money This claim/belief in itself undermined the marriage and made it unreasonable to expect her to live with him H had undermined wife and destroyed her self-esteem
Butterworth v Butterworth [1997]
H heavy drinker, violent, jealous and possessive, sexually demanding, stopped W going to church Recorder granted decree despite lack of details CA: H entitled to proper pleadings so could deny Retrial
Marriageable age...
Historically under common law: boys = 14; girls = 12 (so called legal age of puberty) Now see s.2 Marriage Act 1949 - minimum age is 16 years. In 2010: 2,754 women aged 16-19 were married (from a total of 243,808), of which 8 had already been divorced!
Richards v Richards [1972]
Husband (H) mental health problems; moody, taciturn and insomniac Assaults on wife due to his illness Wife (W) left because hostility between H and his mother-in-law (Wife's mother).... Subjective aspect of this petitioner Objective test - value judgment on reasonableness Irretrievable breakdown but wife could reasonably be expected to live with the husband (marriage vows....)
Law Commission: Reform of the grounds of divorce: Field of Choice (1966)
Ideally, divorce law should buttress rather than undermine, the stability of marriage Law should try to enable the empty shell of a broken marriage to be destroyed with Maximum fairness Minimum bitterness, distress and humiliation Previous offence based divorce process had not achieved these ideals....
Reform?....
In December 2014 the Government asked the Law Commission to conduct a review of the law governing how and where people can marry in England and Wales. The question underlying the review was whether the current law, which has evolved over a long period of time, provides a fair and coherent legal framework for enabling people to marry. Does the law allow people to marry in a way which meets their needs and wishes while recognising the interests of society and the state in protecting the status of marriage? The Law Commission agreed to carry out an initial piece of work to prepare the way for the potential future reform of this important area of law. A preliminary study involving research of domestic and comparative law was carried out, with engagement with key stakeholders. The aim was to identify and provide an initial analysis of the issues that needed to be addressed in order to develop proposals for the reform of marriage law....
Section 2 (1) MCA 1973 example
Kim is married to Kanye. The marriage has been in trouble for a few years. Then Kim starts a new job and meets Gabriel. They begin a sexual relationship. Kanye found out about the relationship on 1st March 2017. He and Kim discuss the situation and agree to try to make their marriage work by seeking marriage guidance whilst still living as a couple. Kim ends her relationship with Gabriel. On 31st December 2017 Kanye decides he has had enough of Kim and the marriage is over. But he can no longer rely on adultery because the couple have cohabited for more than 6 months since he found out about Kim's affair. Kanye will have to rely on a different fact in his divorce petition...
E.g. M v B, A and S [2005] EWHC 1681 (Fam)
LA granted declarations that 23 yr old with severe learning issues lacked sufficient capacity, therefore not in her best interests to leave UK jurisdiction (parents organising marriage in Pakistan)...
Reasons why people divorce...
Lack of stigma/divorce socially acceptable... More women financially independent... Marrying young... Being divorced before... Longer life expectancy... Lower levels of education... Financial problems... Children in the household from a previous relationship... Parents who divorced... Cohabited before marriage...
What is a 'family'?
Legal: "defining the family for the purposes of legally binding decisions and rules" (Douglas 2004: 2).
Marriage (Same Sex Couples) Act 2013
Many provisions coming into force by/on 13th March 2014, enabling first lawful same-sex marriages to occur on 29 March 2014. S.1 Marriage of same sex couples - lawful Civil ceremonies, with opt-in available re religious ceremonies - exemption for CofE... (inc re Equality Act 2010) March 2014 - Dec 2015 - 7,366 S-S marriages...
Carr v Carr [1974] 1 All ER 1193
Marriage 1960 H adultery 1968- (continuing after 1972) W knew about H's affair in 1970- (n.b. nowhere else to go) H left 1972 'Intolerability' arose from H's treatment of children Divorce granted following Cleary...
Marriage
Marriage Act 1949 Matrimonial Causes Act 1973 Gender Recognition Act 2004 Marriage (Same Sex Couples) Act 2013
B & L v UK [2005] 3 FCR 353
Marrying father-in-law Not an absolute prohibition (personal Act of Parliament possible to permit marriage) (Govt view) Proportionate? UK limits on who may marry deemed Inconsistent, irrational, illogical Art 12 breached
Article 12, ECHR:
Men and women of marriageable age have the right to marry and found a family according to the national laws governing the exercise of this right Often litigated in conjunction with Arts 8 & 14
Divorce not available....
N.B. If parties have been married less than one year - Barred by s3 MCA 1973... Could separate, but will remain legally married.... Could choose judicial separation (doesn't end marriage) but enables court to deal with financial and children matters; Or, if able to meet criteria, could choose nullity if marriage void or voidable (2014 - 218 successful nullity petitions)... See the Nullity lecture slides and ss 11 and 12 Matrimonial Causes Act 1973....
BUT, see also s.1(3) MA 1949 ~
NOT void by reason only of affinity where both are 21+, and the younger has not at any time before reaching the age of 18, been a 'child of the family'* in relation to the other....
Initial issues:
Neither party already married or in Civil Partnership (bigamy/polygamy not permitted)... Both parties to the marriage must be over age 16... Parties must not be related to each other within prohibited degrees of consanguinity or affinity... And: Assessment of mental capacity ...
Unregistered cohabitation
Not applicable No legal status...
Religious ceremony? ('opt-in' only)
ORIGINALLY no religious element permitted, although possible to have a separate religious ceremony/blessing (although this ceremony would have had no legal status) BUT, from Mon 5 Dec 2011, prohibition removed, c/f Equality Act 2010, under the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 No. 2661 ~ ~ enable the approval of religious premises as a place where the formation of civil partnerships may take place
What did the Government say?...
October 2017, the Government wrote to the Law Commission to say it's not the right time for a full review of marriage law, but hasn't ruled out further work in the future. The Justice Minister Dominic Raab said in the letter - whilst acknowledging marriage as "one of our most important institutions" - that any opportunities for primary legislation will be focussed on protecting the most vulnerable children and families at this time.' Law Commissioner Professor Nick Hopkins said in reply, "Getting married can be one of the best days in someone's life. But our Victorian laws haven't kept pace with the modern world. Reform has the potential to allow all couples to marry in a way that's meaningful to them. We understand parliamentary time is precious at the moment but don't believe that the need for reform will go away.We hope we can continue our work in this area in the future, and welcome the Minister's promise to keep the situation under review."
Some restrictions - Section 2(1)
One party to a marriage shall not be entitled to rely for the purposes of section 1(2)(a) above on adultery committed by the other if, after it became known to him that the other had committed that adultery, the parties have lived with each other for a period exceeding, or periods together exceeding, six months.
Civil Partnerships, the numbers...
Over 70,000 Civil Partnerships registered since CPA 2004 came into force in December 2005... 2017 908 CPs registered in England and Wales - 65% male couples... Increase of 2.0% on previous year... Conversions from CP to SSM - 7,732 in period Dec 2014 - June 2015... Dissolutions - 1,217 - 57% to female couples... London has the highest number of CPs -37% in 2016 of all new CPs... Average age of males forming a CP - 50.3 women - 49.9...... First year there has been a decrease in CPs....
Divorce Process...
Petitioner prepares divorce petition and applies by post or online (fee payable - £550) Divorce Centre checks petition and if correct it will be sent to Respondent with Acknowledgement of Service form... Respondent completes and returns Acknowledgement of Service (if adultery and person with whom Respondent committed adultery is named in the petition, they will also get a copy).... Within 8 days, Respondent must indicate whether the accept the petition or intend to defend it... Divorce Centre forwards Respondent's Acknowledgement of Service to Petitioner... If Respondent not defending the divorce, Petitioner must apply for decree nisi. Must also include a statement confirming contents of divorce petition are correct and accurate ( choice 5 statement forms - divorce facts).... Upon receipt of the decree nisi and statement, these will be put in front of a judge and if he/she agrees, Petitioner will be sent details of when decree nisi will be granted... Decree nisi pronounced (parties do not have to be present)... Petitioner can apply for a decree absolute to end the marriage after 6 weeks + 1 day, (43 days)... (Respondent can apply after 3 months if Petitioner does not make application)... If decree nisi is rejected, a notice of refusal' will be sent with details of why.... May be required to provide more information, or to attend court....
Law Commission's view?....
Professor Nicholas Hopkins, Law Commissioner for property, family and trust law, said: "The Law Commission believes that a modern law of marriage should allow couples to get married in the way they want and in a place that is meaningful to them, while continuing to recognise the interests of society and the state in protecting the status of marriage. "The law of marriage in England and Wales is now out of date, inconsistent and overly restrictive. Our modern society deserves a clearer set of rules that gives all couples greater choice and certainty, while providing protection from the abuses involved in sham and forced marriage."
Ground - only one: irretrievable breakdown of the marriage
Proved by the existence of one of five 'facts' Adultery Behaviour Desertion Separation 2 years with consent Separation 5 years
E.g., Sandwell v RG, GG, SK and SKG [2013] EWHC 2373 (COP) -
RG, male aged 38, born in India but moved to England when young, moderate learning difficulties, low IQ, challenging behaviour... Housed & cared for by LA Arranged marriage in 2009 to SK in India Status & continuation of marriage? RG cannot consent to sexual relations SK and RG do not wish it to be annulled (ostracisation of SK?)... [57] I accept the premise that no registrar (if properly appreciating and informed as to the lack of capacity) would have celebrated a marriage in England in the first place [marriage took place overseas], but I do not accept that the conclusion that the marriage should now be annulled necessarily follows from the premise. I do not accept it because the present decision has to take into account the facts as they now are, and to make a best interests decision based upon them, giving, but not giving "overarching" weight to, the lack of capacity. [61] [RG] gains some pleasure and some benefits from this marriage and relationship. [62] Like the Official Solicitor, I am completely un-persuaded that his best interests require or justify that it [the marriage] is now annulled. Therefore, although husband (RG) lacked capacity to contract into marriage, it was not appropriate for Ct to direct Official Solicitor to pursue a petition for nullity, as this was not in his best interests. But, LA did have duty to ensure no sexual relations between RG and his wife
Putting Asunder (1966)
Recognition by Church of England that secular law and religious law could diverge Move from 'matrimonial offence' to 'irretrievable breakdown' Proposal for investigative process - to check that reconciliation could not be achieved etc
1951 - time for change?...
Royal Commission appointed after a Bill allowing divorce after 7 years' separation had been given a Second Reading in the House of Commons... Commissioners divided - 18 of the 19 members wanted to retain matrimonial offence principle Report published 1956 -proper role of divorce law to give relief where a wrong had been done, not to provide a dignified and honourable means of escape from a broken marriage where there had been 'no fault'...
Five Facts: s. 1(2) MCA 1973
S1 (2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say— that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (2017 - 10,623 petitions - 10.4%) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (2017 - 47,407 petitions - 46.6%)... (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (2017 -475 -0.5%) (d) that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; (2017 - 27,058 petitions - 26.6% - 2nd most commonly relied on) (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. (2017 - 15,623 petitions - 15.4%)...
S2(3) MCA 1973...
S2(3) allows the parties to cohabit for 6 months from the final incident relied upon. If the 'behaviour' is ongoing, there is no final incident and so time will not have started to run... E.g Katie is married to Russell and they have five children. Russell is violent towards her and also constantly criticises her in front of other people. He also keeps her short of money and fails to help with the children. Katie issues a petition based on behaviour and lists all of the incidents that have happened in the past year. As she has no money and nobody she knows is able to house her and her five children Katie stays with Russell until shortly before the decree nisi is due to be pronounced. Even though she has cohabited with Russell for more than 6 months since the last incident relied upon, the time will be disregarded as the behaviour was continuing up until her departure and so time did not start to run.
Ground for a void CP...
S49 CPA 2004
Matrimonial Causes Act 1857...
Sole ground for divorce was 'adultery', but differences according whether it was the husband or wife petitioning... Husband: only needed to prove wife had committed adultery... Wife: divorce only if she could prove 'Aggravated adultery'... Incestuous adultery Adultery with cruelty Adultery with two years desertion Sodomy Bestiality.... So if no 'fault' by either party, or if the 'innocent' party refused to file, marriage would continue even if the couple were bitterly unhappy...
Lindner v Rawlins [2015] EWCA Civ 61....
Solicitor John Lindner's petition for divorce of his wife of almost 20 years and the mother of his two children, on the basis that the marriage had broken down irretrievably due to his wife's 'behaviour' of advertising herself as a lesbian prostitute on Gumtree s1(2)(b) MCA 1973. He also alleged that his wife had met 13 women online... Wife denied all the allegations and filed a cross-petition under s1(2)(b) MCA 1973 saying that the marriage had broken down irretrievably because the husband had been controlling and violent, including an incident where he had hit the wife with a metal rod and her leg had fractured... (Additional issues dealt with separately in respect of contact and residence under Children Act 1989.) In the divorce proceedings H issued requests for applications including H's request that the H could see a Police Witness Statement made by the W's 'friend' about criminal damage to her Sky dish... H claimed that this (and other) information would help support his divorce petition... Court of Appeal considered what case management powers/disclosure etc was necessary ; Black LJ pointed out that as two years had passed since the parties had separated, they could now be divorced under s1(2)d MCA 1973 (2 years separation with consent) and she urged them to do so... (Interesting discussion also about the problems with Litigants-in-person struggling to negotiate complex rules on disclosure etc...)
Civil Partnerships - what next?.
Speaking in the House of Commons Conservative former minister Tim Loughton, brought a private members' bill which would broaden the availability of the partnerships, also urged the Government to "resolve this illegal inequality and extend civil partnerships to everyone". As a result of the Steinfeld v Keidan decision, momentum on this topic has gathered and it appears that changes may be on their way.... 18th January 2019 the Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill got a second reading. S2 Reform of civil partnership. (1) The Secretary of State must make regulations to change the law relating to civil partnership to bring about equality between same-sex couples and other couples in terms of their future ability or otherwise to form civil partnerships. (2) Regulations under this section must give effect to such equality within 6 months of this Act being passed. (3) For the purposes of this section, 'other couples' means couples who but for the provisions of section 3(1)(a) of the Civil Partnership Act 2004 would be eligible to register as civil partners of each other. After debate in the House of Lords, the motion was agreed, and the Bill will now pass to the Committee Stage - we will keep you posted as to further developments......
Our current law: ONE Ground for Divorce, s.1 MCA 1973...
Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably. Section 3 - Bar on petitions for divorce within one year of the marriage....
'Irretrievable breakdown of marriage: s1(2)(a) MCA 1973 - 'Adultery' fact......
That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; S1(2)(a) requires - Adultery + intolerability 'Adultery' - voluntary sexual intercourse between a married person and a person of the opposite sex, who may or may not be married, and who was not the other person's spouse - Clarkson v Clarkson [1930]... If the respondent has a sexual relationship with a person of the same sex it is not 'adultery'... The act of adultery must be 'ordinary and complete'... Must be 'proved' by petitioner, but evidence usually indirect (not photographs etc)- set out in petition, not challenged by Respondent... But you cannot petition on your own adultery! (Discussed in Owens v Owens [2018] UKSC 41)....
Livingston-Stallard [1974] 2 All ER 766, per Dunn J
The 'jury' approach... Would any right-thinking person come to the conclusion that this husband had acted in a way that this wife could not reasonably be expected to live with him (taking into account the circumstances and personalities of the parties)?
Criticism of MCA 1937- Divorce only if the spouse was mad or bad...
The 1937 Act still conceptualised divorce as a remedy for a 'legal' wrong Mainly fault-based... But also for the misfortune of being married to a person of 'unsound mind' who had been continuously having care and treatment for the five years prior to the presentation of the petition No divorce by mutual agreement - why? Reason given - to allow divorce by consent would destroy the institution of marriage... However, over 90% divorces undefended, sometimes it was obvious that the parties had 'agreed' to the divorce even to the extent of providing evidence of adultery - 'Hotel Cases'....
Grant Thornton Matrimonial Survey 2017...
The survey identifies more information about the law being out of kilter with the reality of why marriages break down... Their respondents gave these reasons for marriage breakdown: 25% Growing part/falling out of love - MCA 1973 fact? Extra-marital affairs - 21% - MCA fact? Unreasonable/controlling behaviour - MCA fact? Their figures also highlighted increase in 'silver splitters' - 50+ age-group - 20% increase in client base from those responding to survey....
Civil Partnerships - 14 years on...
The total number of civil partnerships formed in the UK since the Civil Partnership Act 2004 came into force in December 2005, up to the end of 2016, was just over 70,000.... This is the equivalent to 140,000 civil partners which is much higher than was originally estimated in the regulatory impact assessment on the Civil Partnership Act 2004. The impact assessment suggested that by 2010 the estimated likely take-up of civil partnerships in Great Britain would be between 11,000 and 22,000 people in civil partnerships (Government Equalities Office, 2004). Initial decrease when same-sex marriage Act was introduced, but increase of 3.4% with 890 CPs registered in 2016...
Addison/Campbell Divorce Act,1801
This is a significant Act as it was the first to be obtained by a woman. Jane Campbell managed to divorce her husband Edward Addison on the basis of his aggravated adultery with her sister. She also managed to obtain custody [as it then was] of their children.
Entry into Marriage - Formalities
To ensure only those entitled to marry do so Free agreement Certainty of status Publicity (not clandestine), official record Simple and easily understood Law Comm Rep No 53 (1973) Solemnisation of Marriage
Divorce (Religious Marriages) Act 2002
To force religious regularisation of divorce c/f s.10A MCA 1973 - this provision passed to allow the decree absolute to be postponed until all steps taken to dissolve religious marriage (e.g. Jewish 'Get' )
Options for reform: New Objectives identified...
To support marriages capable of being saved To enable marriages which cannot be saved to be dissolved with the minimum avoidable distress, bitterness, and hostility Encourage amicable resolution of practical issues (home, finances, children) Minimise harm to children and promote shared parental responsibility Parenthood endures beyond the end of marriage... Result: Family Law Act 1996....(not in force ....)
Same-sex couples (previous law)... Wilkinson v Kitzinger (2006)
Valid marriage overseas, sought declaration their marriage was valid in UK. CPA 2004 'translated' marriage into CP. No breach of Art 12, or 8.
Thurlow v Thurlow [1975]
W suffered from epilepsy, she had a bad temper, threw things at her mother-in-law, in-patient treatment Husband could not cope with the stress of his domestic situation, his health suffered Held unreasonable to expect H to live with W NB not unreasonable 'behaviour' - the test is that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent....
Has MCA 1973 made divorce too 'easy' to obtain...?
Were the objectives achieved? The 1969 reforms achieved the objective of allowing 'empty legal shells' to be dissolved.... 1971, the first year after the new law came into force, almost 30,000 petitions were based on five years separation without consent, an indication that the parties had lived apart for at least that long, but may not have been able to divorce due to a lack of consent by one of the parties... But, does the law 'buttress marriages' ? Does the law 'minimise bitterness, distress and humiliation'...? Arguably, no, most 'popular' facts relied on are adultery and behaviour - both blame/fault based...
Current law: Defective formalities (Marriage Act 1949, s49)
Where 'knowingly and wilfully' intermarried: wrong place i.e., if not in a register office, registered religious building or approved premises (eg hotels, castles, stately homes) no proper preliminaries C of E marriage after parental objection to banns delayed too long unqualified person (e.g. trainee priest)
Robert Walker LJ
Where there is an irregular ceremony which is followed by long cohabitation, it would be contrary to the general policy of the law to refuse to extend to the parties the benefit of the presumption which would apply to them if there were no evidence of a ceremony at all. (p 435)
Consanguinity
blood relations
Civil Partnership
dissolution
Marriage (Same Sex Couples) Act 2013
granted Royal Assent 17 July 2013. Again, driven by lobbying and campaigns based on HRs provisions BUT, came about as result of coalition government (England & Wales), and not as result of legal case finding a breach... (legal action was under consideration at Strasbourg, but dropped then this Act was introduced)... David Cameron as a Conservative PM faced a lot of opposition both from within Conservative Party and outside...
Affinity
relations by marriage Social/moral concerns
Nullity - Civil Partnerships can be void or voidable...
s37 CPA 2004 Power to issue a nullity order...
Bars to relief
s51 CPA 2004 (Same as for marriage)
Separation Orders -
s56 CPA 2004
Permits conversion of current CP to marriage (s.9, 2013 Act)
since 10th December 2014... CP conversions to marriage since 10/12/14 - 30/06/15 - 7,732 couples.... The Act also make provision for those seeking to change their genders to remain married
Irretrievable breakdown: Behaviour 'fact' -s1(2)(b) MCA 1973...
that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent Often shortened to 'unreasonable behaviour' - wrongly suggests quality of behaviour, whereas the statute looks to the EFFECT of the conduct upon the petitioner. (Discussed in Owens v Owens UKSC 41).... 'Can this petitioner with his or her character and personality, with his or her faults and other attributes, good or bad, and having regard to his or her behaviour during the marriage, reasonably be expected to live with this respondent?' Ash v Ash [1972] 1 All ER 582
