The Modern Family Law And Should Essay Example
The Modern Family Law And Should Essay Example

The Modern Family Law And Should Essay Example

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  • Pages: 7 (1753 words)
  • Published: December 2, 2017
  • Type: Essay
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It is essential to acknowledge that void and voidable marriages are not the only forms of marriage. A valid marriage conforms to all required procedures without any flaws. Additionally, there exists a category of non-marriage whereby the ceremony deviates so significantly from a legal marriage that it cannot be recognized as one. An illustration of this arises in Ghandi v Patel1.

When addressing the matter, it is necessary to delve into the reasons for void and voidable marriages and their distinctions. The Marriage Act 1949 outlines what constitutes a legitimate marriage, while the Matrimonial Causes Act 1973 details how a marriage may be void or voidable. A void marriage is one that was never valid (void ab initio, or void from the start), whereas a voidable marriage remains legal until it is annulled. Ultimately, marriage represents a status relationship.

Formality is crucial, i

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f not indispensable to a legitimate union between two individuals. Moreover, heterosexual intercourse plays a critical role in the concept of marriage. Various reasons for an invalid marriage and grounds for divorce are often associated with sexual activity. Although certain protocols exist for conducting a marriage ceremony, adherence to religious customs has never been a prerequisite. Nevertheless, as per the Marriage Act 1949 and Marriage Act 1994, it is mandatory to abide by atleast one formal procedure, such as performing rites in accordance with the Church of England, participating in a religious ceremony, or following civil procedures. A legally recognized marriage can be dissolved through either dissolution or death.

The Marriage Act of 1949 identifies three types of defects that are non-compliant with divorce formalities. These types include defects that have no impact on validity, as

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stated in sections 24 and 48. Sections 25 and 49, on the other hand, describe defects that render the marriage void. There are also defects not specified in the Marriage Act, such as marriages occurring behind locked doors, which can result in unclear consequences when it comes to voidability.

Meanwhile, the Matrimonial Causes Act of 1973 outlines the grounds under which a marriage is declared void in section 11. These defects are considered so grave that they suggest no marriage ever existed. Examples include prohibited degrees of relationship, parties being underage (below 16 years old), disregarding certain requirements, parties being already married either in or out of the country, or parties belonging to the same sex. The act does not provide any bars to rendering a marriage void. The first ground listed under section 11(a)(i) is prohibited degrees of relationship, which consists of consanguinity (blood relation), affinity (marriage tie), and is closely related to the criminal offense of incest.

Consanguinity prohibits marriage between certain family members including parents, siblings, grandparents, aunts, uncles, nephews, and nieces. Affinity rules also prohibit marriage with step-parents, parents in law, or adoptive parents. Cheni v Cheni3 provides case law on this topic. Cases such as Alhaji Mohammed v Knott4 and Pugh v Pugh5 further establish guidelines for underage marriages. Marriages involving parties under sixteen years of age are classified as void6. However, if either party is between 16 and 18 years of age and there is a lack of parental consent, the marriage can become voidable7 while the validity remains intact.

Marriages can be declared void if both parties knowingly and wilfully disregard formal requirements, although there are exceptions. Section 11 (b)

and section 11 (d) address the issue of polygamous marriages. It is unlawful for a person to marry if they are already married, and this rule does not exempt a "guilty" spouse who may have believed their previous spouse was deceased. The laws around marriages between individuals who are of the same sex are unclear, especially with advancements in sex change operations.

Section 11 (c) of the law mandates that parties must have different genders for marriage. Transsexuals, hermaphrodites, and same-sex couples have faced challenges when trying to marry under the law governing void marriages. There has been significant case law related to this issue. The Matrimonial Causes Act of 1973's Section 12 outlines the grounds for voidable marriages, which provide an option in cases where divorce is not permissible due to religious beliefs. Voidable marriages address defects present at the time of marriage that do not make it entirely invalid.

The distinction between voidable marriages and void marriages is recognized by the law. Only the parties concerned can declare a voidable marriage invalid, while any third party may request that a void marriage be declared null and void. Voidable marriages remain in effect until they are annulled and are not invalidated by death. The validity of a voidable marriage is largely dependent on sexual relations. If one or both parties are unable to consummate the union, it could potentially be considered a voidable marriage under Section 12(a). Regardless of any premarital sexual activity, full penetration during intercourse after the ceremony is required for a marriage to be considered consummated.

According to section 12 (b), only the innocent person can petition if one party willfully refuses to consummate

the marriage. Lord Jowitt in Horton v Horton11 stated that a single refusal isn't enough; instead, repeated attempts by the innocent party are required. Wilful refusal doesn't have to be for sexual intercourse but could also include incapacity or religious ceremony arrangements as seen in S v S and Kaur v Singh12 respectively. In Kaur v Singh12, the husband refused to arrange a religious ceremony causing the wife to refuse co-habitation and consummation of their marriage. The court ruled that while the wife had good reason or excuse, the husband did not impede consummation resulting in annulment of their marriage.

Section 12 (c) states that marriages may be considered voidable if consent is not given due to duress, mistake, unsoundness of mind or another cause. This includes situations where there is a danger to one's life, limb or freedom (under duress), or where there is a genuine misunderstanding of the ceremony, as seen in Mehta v Mehta13 where the wife believed she was converting to Hinduism but was actually getting married.

Although having the correct personality is important, an incorrect identity can still result in a marriage being voidable. However, not all mistakes lead to this outcome, as evidenced in Way v Way14 where the husband's lack of knowledge about Russian marriage regulations did not make the marriage voidable.

A marriage may be declared voidable if one party is mentally unsound or under the influence of drugs or alcohol and does not understand the nature and responsibilities of marriage. The Mental Health Act 1983 allows for annulment under section 12 (d) if one party is deemed mentally unfit, while section 12 (e) permits for voidable marriages if one

spouse has venereal disease. Only parties involved in the union are allowed to request its annulment under this section.

The following passage describes two reasons for declaring a voidable marriage based on fault. The initial reason is due to the presence of a sexually transmitted disease, which solely applies to the innocent party. However, if the innocent party was aware of the disease before getting married, they are believed to have given their full consent despite it. The second ground for annulment is pregnancy, and it too only pertains to the innocent petitioner. In this instance, the wife must be carrying someone else's child while her husband remains unaware of either fact during marriage.

The Matrimonial Causes Act 1973 lays out the grounds for bars to voidable marriages, which include approbation, delay, and knowledge as outlined in section 13. To meet the requirements of approbation, the petitioner must have initially approved of the marriage and made the respondent believe they would not seek annulment due to perceived injustice. The time bar for delay only applies to certain grounds listed in section 12(c), (d), (e), and (f) but not non-consumption of marriage; if the petitioner has a mental disorder, it begins when they are in a fit state. The bar related to pregnancy and venereal disease under sections 12(f) and (e), respectively is based on lack of knowledge by the petitioner.

After discussing the potential nullity of marriages, there is a question about whether vague grounds for divorce should remain unchanged or be expanded. According to Chief Adjudication Officer v Bath 18, cohabiting couples are viewed as married unless proven otherwise, which may suggest that marriage as an institution

is outdated. The current grounds for nullity can be burdensome and unclear, and since cohabiting couples have the same legal rights as married couples, creating unnecessary confusion in court seems unwarranted. Although annulments were granted according to Cannon Law prior to the sixteenth century, modern divorce law still appears to be rooted in old-fashioned ideas.

Is it not outdated for parliament to retain old ideas in laws? Shouldn't laws reflect today's society? The concept of void vs voidable marriages can be debated. Are two distinctions necessary or should they not exist at all? Void marriages never existed, and a decree is retrospective when granted. Voidable marriages are valid until annulled, similar to dissolution. If the grounds for voidable marriages only annul the marriage prospectively, why not eliminate this concept and have only void and valid marriages that can be ended by divorce? Void marriages are matters of public policy, allowing third parties to petition for a decree. Voidable marriages concern private matters and can only be petitioned by the parties involved. With grounds such as duress and unsoundness of mind, it can be challenging for the innocent party to petition.

If the listed grounds were classified under void marriage, any third party would be able to request nullification and release the innocent spouse from an unjust situation. In 2002, out of 171,054 divorce petitions filed, only 758 were petitions for nullity. The number of petitions granted for divorce was 147,538 while only 197 were granted for nullity. With such a low usage rate, it seems pointless to maintain a vague and confusing section of the law for such a small number of individuals. The majority (86%) of

divorce petitions are granted absolute status, compared to only 26% of nullity petitions.

Despite a low percentage of granted petitions, the relevance of nullity is still questioned in modern society. Traditional or religious reasons often prevent couples from dissolving their marriage through divorce. Although some religions do not accept divorce, nullity may be permissible for cases where a normal marital relationship is not possible (see grounds for voidable marriages). The concept of void and voidable marriages is becoming outdated as divorce carries social and religious taboos, whereas nullity does not. With a substantially lower number of nullity petitions compared to divorce petitions, an unclear system of law confuses and contradicts people unnecessarily.

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