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Capacity to Marry - Sex and Consent

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kazzasingh's version from 2018-05-10 17:15

Two types of nullity

Question Answer
s11 MCA or s49 CPAVOID marriages or civil partnerships are those that are so fundamentally flawed that they should never have existed in law. Things that matter so much to society in general that such relationships should not be given legal recognition.
s12 MCA or s50 CPAVOIDABLE marriages are legally valid until one of the parties wants to make an issue of it.
Rampal v Rampal (No.2) [2001]Financial relief is available in certain circumstances for VOID grounds.
Non-marriageNo financial relief available! Spouses treated as if they were 'cohabitants'.
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VOID GROUNDS

Question Answer
Steinfield and Keidan v Secretary of State for education [2017]Where parties are not of the same sex (Civil Partnership ONLY)) - question whether opposite-sex people should be allowed to enter into civil partnership
s11(a)(ii) MCA or s3 CPAAbsolute minimum age for marriage is 16
s11(b) MCA or s3(1)(b) CPAMarriage or civil partnership is void if either is a party to an existing formal relationship
s11(a)(i) MCA or s3(b) CPAProhibited degrees of relationship --> parties cannot be too closely related
B and L v UK [2006]Prohibited degrees of relationship --> the issue was whether a father-in-law could marry his daughter-in-law. HELD: can only prevent this sort of marriage if they lived in the same house together (this rule is in place to prevent grooming etc).
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VOIDABLE GROUNDS

Question Answer
Corbett v Corbett [1971] (heterosexual marriage)Non-consummation --> only applies to heterosexuals because "it is the institution upon which family is built, and in which the capacity for heterosexual sex is an essential element".
Baxter v Baxter [1948]Using a condom during sex still means the marriage is being consummated
White v White [1948]No minimum duration required for penetration (any penetration constitutes consummation)
Corbett v Corbett [1971] (penetration)Intercourse using an artificial cavity was 'the reverse of ordinary, and in no sense natural'.
S v S [1963]Incapacity to consummate --> physical or psychological incapacity to consummate that is incurable (the wife in this case was physically incapable of penetration).
G v G [1924]Incapacity to consummate --> physical or psychological incapacity to consummate that is incurable (invincible repugnance - psychologically unable to have sex with partner).
Singh v SinghIncapacity to consummate --> you can petition based on your own incapacity to consummate (C could not produce any medical evidence as to why she could not have sex with her husband. HELD: lack of inclination is not the same thing as invincible repugnance).
A v J [1989]Incapacity to consummate --> Wilful refusal --> (the couple had an arranged marriage but wife would not have sex with husband). YOU CANNOT PETITION ON THE BASIS OF YOUR OWN WILFUL REFUSAL.
What happens if you convert your civil partnership to a same-sex marriage (in the context of venereal disease)?The law treats you as married from the date of the civil partnership (s9(6) Marriage (Same Sex Couples) Act 2013). Hence, if you convert your CP into a SSM, the law treats you as married from the date of the CP. As a result, the SSM becomes voidable for venereal disease (s12(a) MCA) ***you must act within 3 years***
Park v Park [1954]Consent to marriage --> must be 'mentally capable of appreciating that it involves in the responsibilities normally attaching to marriage'. You must be able to consent to the 'idea of marriage'.
Sheffield City Council v E and S [2004]Adults with learning difficulties forced into marriages with each other. HELD: the capacity to understand the sexual capacity of marriage is important
YLA v PM, MZ [2013]Woman had married and had a child with D. She lacked the capacity to consent to sexual relations. If she continued to live with her husband there would be a risk of a criminal offence. Voidable ground so one of the spouses had to bring an action to nullify. Woman lacked the capacity to take legal action herself. HELD: marriage had some benefit to the woman. However, the husband and wife were required to live apart otherwise the former would be convicted.
PC & Anor v City of York Council [2013]The wife had learning difficulties and was living with her husband. He was convicted of sexual offences and sentanced to 13 years in prison. They married while he was in prison but he was deemed to be a serious threat to her upon his release. HELD: she had a capacity to marry and she understood what marriage was. She could consent to sexual relations. BUT couldn't live with husband upon release.
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FORCED MARRIAGE

Question Answer
Szechter v Szechter [1971]Legal test for duress --> a genuinely held fear caused by a threat of imminent danger to life, limb or liberty
Hirani v Hirani (1983)Legal test for duress --> any threats/pressure that destroyed the reality of consent to marriage
NS v MI [2006]Legal test for duress --> 'subtle, insidious, pervasive and powerful'
B v I [2010]3 year time limit --> English woman taken to Bangladesh for a forced marriage. By the time she came back, the 3 year time limit had passed. HELD: could not be declared void as it was statute barred.
Re P (Forced Marriage) [2011]3 year time limit --> English woman taken to Pakistan for a forced marriage. By the time action began in the UK courts, the 3 year time limit had passed. HELD: due to lack of consent, it was a NON-MARRIAGE.
A Local Authority v X and a Child [2013]At the time of marriage, the bride was 14 years old. HELD: void
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