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Nullity
Marriage and Cohabitation
Non-Marriage
s 11 Void Marriages
s 12 Voidable Marriages
s 13 Children
Financial Provision after the marriage is declared void/annulled
MARRIAGE AND COHABITATION
Definition of marriage
In Hyde v Hyde and Woodmansee [1866] marriage is defined as āthe voluntary union for life of one man and one woman to the exclusion of all othersā.
Thorpe LJ in Bellinger v Bellinger [2001] suggested that marriage should be defined as āa contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligationsā.
Marriage is a legal agreement which creates certain rights and duties. These include:
ā a duty to maintain under the Domestic Proceedings and Magistratesā Courts Act 1978 and under the Matrimonial Causes Act 1973, s 27;
ā home ownership rights ā on divorce the courts have the power to transfer the matrimonial home or a share of it to either party regardless of property law principles;
ā duty to accommodate ā right of occupation under the Family Law Act 1996 under s 30.
Cohabitation
Is not a relationship recognised in law like marriage and as a result cohabitees may not have the same rights on the break up of the relationship.
Couples that cohabit may face problems when their relationship breaks down. The law of equity and trusts may need to be used to enable either party to establish a beneficial interest in the home they occupied together. The legal mechanism used to establish a beneficial interest in a property is an implied constructive trust. The party must establish that there was a common intent to share the interest in the property. The question usually asked is āis there any agreement, arrangement or understanding reached between the parties that the property is to be shared beneficially?ā Lloyds Bank v Rosset [1991].
A common intent can be inferred from a direct contribution to the purchase price or mortgage instalment. The leading case on this area of law is Stack v Dowden [2007]. In addition to establishing a common intention the party must also establish that there was a ādetrimental reliance.ā A detrimental reliance can be acts which show the party has relied on that common intention to his or her detriment. For example assuming joint liability for mortgage repayments. Although recent evidence suggests the need to establish this is diminishing.
Calculating the fair share that a party may be entitled to is not necessarily straight-forward. The question often asked is āWhat would be a fair share for each party having regard to the whole course of dealings between them in relation to the property?ā The Court should try and infer the partiesā intentions from the surrounding circumstances. Although in Stack v Dowden [2007] it was highlighted that contributions do not necessarily need to be equal. The question to be asked according to Hale in Stack is not simply āwhat is the extent of the partiesā beneficial interests BUT did the parties intend their beneficial interests to be different from their legal interests and if they did, in what way and to what extent?ā The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way.
Reform
There is much discussion about how the law provides for cohabiting couples when a relationship comes to an end. Trust law is used to determine who is entitled to what property at the end of the relationship and many argue this can promote uncertainty and unfairness between the parties. This is reflected in the Law Commissions Report; Cohabitation: The Financial Consequences of Relationship Breakdown published in July 2007. Since its publication Lord Lester of Herne Hill presented the Cohabitation Bill 2009 in the House of Lords, which sought to determine specific rights for cohabiting couples on relationship breakdown and was largely based on the recommendations proposed by the Law Commission. The Bill was unable to complete its passage through the House of Lords due to a lack of time and as a result remains unimplemented.
The Bill aimed to provide basic protection in the event of a cohabiting couple:
ā ceasing to live together; or
ā the death of one of them; or
ā enabling the life of either of them to be insured.
References to cohabitants in a relationship were to any two people (whether of the same sex or the opposite sex) who:
ā live together as a couple; and
ā meet the first and second conditions specified which are:
ā cohabitant couple are mother, father or parent of the same child
ā a joint residence order is in force in respect of a minor child
ā the cohabitants have lived together continuously for two years or more
ā are neither married to each other nor in a civil partnership of each other.
Although fewer than 1 per cent of marriages are now terminated by nullity petitions today, students still require a knowledge of this area.
The law of nullity encompasses non-marriages, void and voidable marriages. Each area has its own concepts and grounds for its existence.
NON-MARRIAGE
The ceremony which the parties undertook was of no legal consequence. The court therefore has no power to redistribute property and the couple will be treated as unmarried (Gereis v Yagoub [1997] 1 FLR 854; J v C [2006] EWCA Civ 551).
VOID MARRIAGES
There are social and public policy reasons as to why the marriage should not exist, as illustrated by the grounds contained in s 11 of the Matrimonial Causes Act (MCA) 1973. Due to public policy considerations, void marriages are void ab initio. This means in the eyes of the law that the marriage never exisited. The decree granted is declaratory but necessary to gain financial provisions. Also, third parties can challenge the validity of the marriage. There are no special defences.
Marriages celebrated after 31 July 1971 will be void on the following grounds.
Section 11(a)(i)
The parties to the marriage are within the prohibited degrees of relationship: either blood relations (consanguinity) or non-blood relations (affinity). See the Marriage (Prohibited Degrees of Relationship) Act 1986. The bar preventing parents-in-law from marrying children-in-law was lifted following the case of B v UK [2005]. This case upheld the fact that preventing a man from marrying his daughter-in-law was a violation of the coupleās right to marry under Article 12 of the European Convention of Human Rights. As a result the Marriage Act 1949 (Remedial Order) 2007 was passed removing this bar.
Section 11(a)(ii)
Either party is under the age of 16. However, if both parties are domiciled abroad at the time of the marriage, the marriage will be recognised as valid if it is recognised as valid in the country in which it was celebrated.
If either party is aged over 16 but under 18, then written consent is required from each parent with parental responsibility:
However, if this consent is lacking, the marriage will not be void unless the parents have publicly objected to the banns, thereby voiding them. An application can also be made to the High Court, county court or magistratesā court to obtain consent if the parents cannot give consent due to absence or inaccessibility.
Section 11(a)(iii)
The parties have intermarried in disregard of certain requirements as to the formation of marriage.
Publicity has been deemed necessary to prevent clandestine marria...
