Briefcase on Family Law

L.B. Curzon

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781138425668
• eBook ISBN: 9781135338183
• Edition: 1
• Topic: Jura
• Subtopic: Familienrecht

This Briefcase is made up of a very wide selection of cases chosen so as to enunciate and illustrate some of the fundamental principles applied by the courts to contemporary problems of family law.

The basic facts of the cases and the courts decisions are outlined, and particular attention is given to judicial comments on the essence of the legal questions under discussion. Special emphasis is placed on recent decisions of the Court of Appeal and House of Lords. Attention has been paid to the implications of the recent announcement that the Family Law Act 1996 has been placed on hold, with the exception of the important Part IV of the Act, relating to domestic violence. Full reference tables of cases and statutes are given.

Presentation of the text is designed specifically for students involved in preparation for law degrees and other law-related courses, and for social workers whose daily activities necessitate an understanding of the impact of the decisions of the courts on fundamental social problems related to the family.

Part 1 Marriage and Nullity

1 Legal Capacity to Marry and Formalities

1.1 The basic legal principle of marriage

Note

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A marriage can be created legally between a male and a female who possess appropriate legal capacity to marry and who comply fully with all formal requirements.

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Hyde v Hyde (1866)

P, the petitioner, an Englishman, took up residence in Utah, where he became a Mormon and married R, who was also a Mormon, in accordance with the marriage rites of the Mormon Church which, at that time, allowed polygamy. P later returned to England, having renounced the Mormon faith. R continued to reside in Utah and married a second husband. P sought to divorce R on the ground of her adultery.

Held: P’s petition would be refused because English matrimonial law concerned Christian marriage only. Per Lord Penzance:

I conceive that marriage, 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.

Rignell v Andrews (1991)

X had cohabited with Y for some 11 years. Y had taken X’s surname. X claimed that Y was his ‘common-law wife’ and that he could claim the tax allowances appropriate to a husband whose wife was living with him.

Held: the term ‘wife’ applied only to a woman who had entered into the relationship of marriage with a man. Mere cohabitation did not give rise to marriage, and the phrase ‘common-law marriage’ was inaccurate.

1.2 The legal capacity to marry

Note

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A person domiciled in England has capacity to marry if: one party is male and the other female, neither party is already married, both parties are over the age of 16, parties are not related within the prohibited degrees of consanguinity or affinity.

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1.2.1 Parties to be male and female

Corbett v Corbett (1971)

X and Y had participated in a marriage ceremony in 1963. In 1960, Y, born a male, had undergone so called sex-change surgery after which he had lived as a woman and had married X. During subsequent proceedings related to a decree of nullity of marriage, the court considered the problem of Y’s sex.

Held: The so called marriage of X and Y was void. Per Ormrod J:

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case, depends, in my judgment, on whether respondent [Y] is or is not a woman. The question then becomes what is meant by the word ‘woman’ in the context of a marriage, for I am not concerned to determine the ‘legal sex’ of the respondent at large. Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot produce a person who is naturally capable of performing the essential role of a woman in marriage. My conclusion is that the respondent [Y] is not a woman for the purposes of marriage, but is a biological male and has been so, since birth.

Cossey v UK (1991)

C, a British citizen, had been born male and her birth certificate stated this fact. She developed psychologically as a female and received gender reassignment surgery. C’s request for a change to her birth certificate was refused. C later married Mr X; the marriage was declared to be void because the parties were not male and female. C applied to the European Court of Human Rights, arguing that there had been a violation of article 8 (right to family life) and article 12 (right to marry).

Held (by a majority): the refusal to alter C’s birth certificate was not a violation of article 8. The UK’s birth registration certificate was a public record and respect for C’s private life did not impose an obligation on the UK to alter existing records. There was no violation of article 12, which lays down that a person’s right to marry is subject to domestic law. The

UK’s restriction of the right to marry to persons of opposite biological sex did not affect article 12, which concerned traditional marriage between male and female. Judge Palm, and two colleagues, in dissenting, argued that there had been significant changes in public opinion as regards the full legal recognition of transsexualism which should be taken into account in the interpretation of article 12.

Re P and G (Transsexuals) (1996)

P and G, male-to-female transsexuals who had received gender reassignment surgical treatment, applied for judicial review of a refusal by the registrar to alter the birth register so as to show their sex at birth as female.

Held: the registrar was correct in considering the register as a historical record and not as a statement of the current sexual identity of P and G. Surgery undergone after registration was merely evidence of a preexisting condition. Further, the registrar’s refusal did not constitute a breach of the Sex Discrimination Act 1975: there was no evidence that either P or G had been treated less favourably than a male who had been registered at birth as a female would have been treated.

W v W (Physical Inter-Sex) (2000)

H and W had married in 1993. In 1997 a decree absolute had been granted following W’s petition, and this was followed by ancillary relief proceedings. H did not contest the divorce but later sought a decree of nullity on the ground that at the time of the marriage the parties had not been male and female respectively. He contended that the marriage was void, in that W was not a woman but a physical inter-sex. Although W was registered at birth as a boy, and in spite of treatment with testosterone injections from an early age, her general appearance had been more female than male. From the time she was able to choose, she had lived as a female. In 1987, following oral oestrogen treatment, W had undergone gender reassignment surgery.

Held: H’s application was dismissed. Charles J stated that the factors determining a person’s sex for the purpose of marriage, as set out in Corbett v Corbett (1971), were biological, and, if the gonadal, chromosomal and genital tests were congruent, that was determinative of an individual’s sex. W’s genetic and gonadal sex was male but her genitalia were ambiguous and her body habitus and gender orientation appeared female. Partial androgen insensitivity caused her to be in a physical inter-sex state. Given such insensitivity, its cause and effect, evidence of W’s final choice to live as a woman before the oestrogen treatment, her gender reassignment surgery, and her capacity to consummate the marriage, he was satisfied that this was sufficient to demonstrate that, for the purposes of the marriage, W was a woman.

Bellinger v Bellinger (2000)

W petitioned for a declaration that she was validly married to H within the terms of s 11 MCA 1973. Supported by H, W contended that she was female at the time of the marriage in 1981, and that the decision in Corbett v Corbett (1971) ought to be reconsidered in the light of medical advances and changed social conditions. The Attorney-General, intervening, argued that W’s biological characteristics at birth were congruent, and she was male, despite having undergone medical treatment and an operation for gender reassignment.

Held: W’s application for a declaration was refused. Johnson J stated that, while accepting that recent medical research suggested increasing medical recognition that sexual differences in the brain were an additional factor in determining an individual’s gender, and that social attitudes had changed markedly since 1971, nevertheless, the law as it stood at present was quite clear: a marriage could be valid only where the sex of the applicant had been female at the time of birth, and, on the basis of the criteria set out in Corbett, that was not so in W’s case. If any fundamental change to the law were to be introduced, this was a matter for the legislature, not for the judges.

1.2.2 Parties to be over 16 at the date of marriage

Pugh v Pugh (1951)

X, a British officer, domiciled in England, went through a civil marriage ceremony in Austria with Y, aged 15. Y was domiciled in Hungary, in which a marriage of that nature was recognised as valid. Later, Y presented a petition for nullity.

Held: the marriage was void since X lacked the capacity under English law to marry Y. (See s 2 MA 1949; s 11(a)(ii) MCA 1973.) Per Pearce J:

According to modern thought it is considered socially and morally wrong that persons of an age at which we now believe them to be immature … should have the stresses and responsibilities of marriage … Child marriages by common consent are believed to be bad for the participants and bad for the institution of marriage.

Mohamed v Knott (1968)

X married Y, aged 13, in Nigeria; both were Nigerian Moslems and the marriage was valid under the Moslem law of Nigeria. The marriage was potentially polygamous. X and Y came to the UK where, on application to the juvenile court, it was held by the justices that the marriage was not recognised under English law. The Court of Appeal considered the validity of the marriage.

Held: the marriage was valid under English law, so that Y had the status of X’s wife. Neither X nor Y was domiciled in the UK when the marriage took place; it would be recognised here unless there was strong reason to the contrary.

1.2.3 Neither party must be already married to some other person (see s 11(b) MCA 1973)

Baindail v Baindail (1946) CA

X, an Englishwoman, went through a marriage ceremony with Y in London in 1939. In the marriage certificate, Y was described as a bachelor. Eleven years earlier Y had married Z, a Hindu woman, at a Hindu marriage ceremony in India. The marriage was recognised in India and was potentially polygamous. It was recognised also by courts in British India. Z was alive when X married Y.

Held: X was married lawfully to Z at the time he purported to marry Y. His marriage to Z constituted an effective bar to his marriage to Y.

1.2.4 Parties must not be within the prohibited degrees (see Sched I MA 1949; Marriage (Prohibited Degrees of Relationship) Act 1986)

Cheni v Cheni (1965)

X and Y, who were uncle and niece, were married in Egypt in a ceremony based on Jewish rites. The marriage was valid under Egyptian and Jewish law and although it was, at the time of its celebration, potentially polygamous, it was rendered monogamous when a child of the marriage, Z, was born in 1926 (two years after the marriage). X and Y became domiciled in the UK in 1957. In 1961, Y, the wife, presented a petition praying that her marriage to X be declared void on the ground of consanguinity.

Held: the marriage of X and Y was valid. Per Simon P:

[The true test is] whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law … It would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation. I must bear in mind that I am asked to declare unmarried the parents of [Z] who is unquestionably legitimate in the eyes of the law (Re Bischoffsheim (1948)). In my judgment, injustice would be perpetrated and conscience would be affronted if the English court were not to recognise and give effect to the law of the domicile in this case.

1.3 The significance of formalities

Note

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Where persons have married in breach of certain specified formalities, that marriage may be void. (See ss 25, 49 MA 1949; s 11(a)(iii) MCA 1973.)

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Small v Small (1923)

X was a deserter from the Royal Field Artillery. In order to avoid detection and prosecution he had assumed a false name which he used in relation to the publication of banns concerning his marriage to Y.

Held: X had a fraudulent intention to conceal his true identity and the banns had not been properly published. The marriage of X and Y was, therefore, void. (See the Marriage Act 1949, s 25(b).)

Chipchase v Chipchase (1939)

A woman named Matthews married Leetch in 1915; he deserted her in 1916. In 1928 she married the petitioner, following banns published in the name of Matthews. She was generally known by this name and had used it for two years before her marriage to the petitioner. Her motive was, apparently, a wish not to emphasise the fact of her marriage to Leetch. The justices held that the second marriage was void because there had been no due publication of the banns. She appealed to the Divisional Court.

Held: the appeal was allowed and the case was remitted to the justices for a determination of the question as to whether she had knowingly and wilfully concealed her identity in relation to the publication of the banns. Per Merriman P:

I think it quite clear that the justices have not had their minds directed to the established interpretation of the Marriage Act 1823, s 22 [‘Provided always, that if persons shall knowingly and wilfully intermarry without due publication of banns … the marriage of such persons shall be null and void to all intents and purposes whatsoever.’] The object of this Act was to prevent clandestine marriages. There must be an element of intentional concealment of identity before it can be said that the marriage is void for undue publication of banns. I do not think that this element of the matter was considered sufficiently by the justices. Small v Small was cited. In that case unquestionably there was the element of deliberate concealment, and the motive was quite plain. It may be that this is such another case, but, at any rate, the wife must have the opportunity of establishing, as counsel says she is able to establish, that the name in which she was married was the name by which for years she had been commonly known, and that there was no intention to conceal her identity in the particular circumstances of this case.

Dancer v Dancer (1948)

Jessamine was the legitimate daughter of Mr and Mrs Knight. When Jessamine was aged three, Mrs Knight began to live with Mr Roberts, by whom she had children. All the children, including Jessamine, were known as Roberts. She did not discover that she was not Roberts’ daughter until his death, when she was 17. She continued to be known as Roberts and was named in the banns as Jessamine Roberts. Later her husband petitioned for a decree of nullity, arguing undue publication of banns.

Held: there was no undue publication of banns. Per Ormrod J:

She [Jessamine] had adopted the advice of the vicar, which was: ‘If you give the name of Knight, no one will know anything about you. But if you give the name of Roberts, by which name you have always been known in this parish and everywhere else, then everyone will know who it is that is being married.’ On that advice and with the intention of avoiding any form of concealment, she allowed her name to go forward in the banns as Roberts. I am satisfied that, in those circumstances, this is a case in which there was no undue publication of banns.

Puttick v AG (1979) CA

Astrid Proll, a German who had absconded to England from Germany where she was on bail for terrorist offences, entered the UK by use of a false passport. In England she married Robert Puttick by licence, using a false name and giving other false particulars. Following arrest on an extradition warrant she claimed registration as a British citizen and sought a declaration of the validity of her marriage.

Held: the declaration would be refused. The false details did not invalidate the marriage, but by obtaining residence in England by fraud, the petitioner was barred from obtaining a domicile of choice here, and, given the context of her conduct, it would not be just to make the declaration she sought. Per Baker P:

A clear distinction has been recognised by the English courts between marriage by banns and marriage by licence. In the former, a misdescription of a party renders the marriage void because there has not been the required publicity. In the case of marriage by licence there is no such requirement and no such r...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Abbreviations
• Table of Cases
• Table of Statutes
• Part 1 Marriage and Nullity
• Part 2 Divorce and Judicial Separation
• Part 3 Domestic Violence
• Part 4 Financial Provision and Property Disputes
• Part 5 Aspects of Family Law Relating to Children
• Appendix