Understanding Family Law

Liz Rodgers

• Publisher: Routledge-Cavendish
• Year: 2012
• eBook ISBN: 9781135329785
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Understanding Family Law is a clear and concise book for students of family law. The text is easy to digest, and even the most complex issues are presented in a user-friendly way.

CHAPTER 1

MARRIAGE – THE STARTING POINT

1.1 OBJECTIVES

By the end of this chapter you should:

• understand and be able to describe the legal rules on the process of marriage;

• be able to apply the law to client scenarios and advise on the marriage formalities; and

• be able to advise clients on the consequences of failure to comply with the formalities.

Historically, the law did not involve itself too much in the regulation of marriage. An individual was free to ‘marry’ merely by the exchange of vows, or by the act of sexual intercourse with their partner. This lack of legal regulation led to the term ‘common law wife’, which is still in use today, although having little, if any, legality or rights attached to it. The law did, however, start to become involved in marriage in the 18th century, and now legislation provides the rules surrounding the process of marriage. In this chapter you will be looking at the formalities of the marriage process and the potential consequences of failure to comply with the law, to establish how you marry, before moving on in the next chapter to look at the issue of who can marry whom.

1.2 DEVELOPMENT OF THE LAW

As you have just seen, the law has only begun to become involved with the process of marriage in the last 250 or so years, by laying down requirements on parties wishing to marry. Common law marriages, which took the form of an exchange of vows (not required to be in a church or religious place of worship), or the act of living together and having sexual relations, were the norm.

Question

Can you think of any problems that may arise from such a form of marriage?

While there may have been advantages to this system, for example, the lack of expense and the lack of state regulation over what was seen both as a religious issue and also as a personal matter, there have been some problems identified with this common law system. Cretney, Masson and Bailey-Harris in Principles of Family Law, 7th edn, 2002, Sweet & Maxwell, p 10, identify them thus:

The informality permitted by the common law had a number of disadvantages. First, there would often be uncertainty about the validity of a marriage. It was not so much that there might be doubts about the validity of the informal union itself; but rather that indiscreet and quickly forgotten words breathed under the influence of passion would be relied on many years later by one of the parties to a, possibly transient, relationship. The intention underlying such an assertion of an informal marriage might well be to invalidate the other party’s subsequent solemn marriage with a third party.

Secondly, hasty and ill-considered marriages were facilitated. The agreement which is all that is necessary to form a valid common law marriage might – as an American writer has put it – have been entered into ‘in the privacy of one’s own bedroom, in an automobile after a picnic in the country, or after a night’s debauch’. In such cases, it seems unlikely that there would be much point in inquiring whether the promises were in the present or future tense.

Thirdly, the creation of such a marriage might have important and undesirable legal consequences. The American case of State v Ward 28 SE 2d 785 (1994), provides a striking illustration of the potential evil of such ‘quickie’ marriages: the defendant to a charge of unlawful intercourse with a minor successfully asserted that the complainant was his wife at common law.

Consequently, legislation was passed in 1753 to regulate marriage, and the manner in which a marriage could be contracted. While the Act is commonly called Lord Hardwicke’s Act, its correct title was the Clandestine Marriages Act 1753, and it succeeded in replacing the common law marriage with a marriage celebrated in church. Certain pre-marriage formalities were stipulated (such as the calling of banns), and failure to comply with them would result in the marriage being invalid.

In 1836, the Marriage Act was passed, which amended Lord Hardwicke’s Act, and introduced the secular procedure for marriage. This, therefore, meant that couples could legally marry without having to go through a Church of England ceremony. This secular ceremony was not to be as simple as the common law exchange of vows, since the Act again specified the formalities to be met before the marriage would be acceptable in law. This dual system of marriage and, in particular, the dual system of pre-marriage formalities, is still with us today. The legislation has occasionally been amended, and the relevant law is contained in the Marriage Act 1949 (as amended).

1.3 THE FORMALITIES OF MARRIAGE

Within this heading, there are different areas to be considered, namely the pre-marriage requirements, the solemnisation of the marriage, and consent. However, when most people contemplate marriage they probably think more about the practicalities of getting married, and what they perceive to be the formalities – such as getting the wedding outfits, choosing the rings, arranging the reception and making sure that hostile relatives do not end up sitting next to one another. However, these sort of practicalities have nothing to do with the legality of the process; they are little more than the social etiquette that is attached to the wedding ceremony. The legal formalities refer to the giving of notice of the forthcoming ceremony and other prerequisites, and these will differ according to the type of ceremony you have, that is, a Church of England ceremony, a purely secular or civil ceremony, or a religious ceremony (other than C of E).

1.3.1 Pre-marriage requirements

1.3.1.1 Civil marriages and marriages other than in accordance with the Church of England

A secular marriage, as well as a marriage which is conducted under the auspices of a religion other than the Church of England, must only be performed after the necessary forms of notice have been given and the relevant superintendent registrar’s certificate issued. Read the following extracts from the Marriage Act 1949 to establish the type and form of notice required to marry:

27 Notice of marriage

(1) Where a marriage is intended to be solemnized on the authority of certificates of a superintendent registrar … notice of marriage in the prescribed form shall be given –

(a) if the persons to be married have resided in the same registration district for the period of seven days immediately before the giving of the notice, by each of those persons to the superintendent registrar of that district;

(b) if the persons … have not resided in the same registration district for the said seven days … by each of those persons to the superintendent registrar of the … district in which he or she has resided …

(2) A notice of marriage shall state the name and surname, marital status, occupation, place of residence and nationality of each of the persons to be married … and –

(a) … shall state the period, not being less that seven days, during which each of the persons to be married has resided in his or her place of residence;

…

(4) The superintendent registrar shall file all notices of marriage and … enter the particulars given in every such notice, together with the date of the notice … in a book furnished to him for that purpose … and the marriage notice book shall be open for inspection free of charge at all reasonable hours.

(5) The superintendent registrar shall be entitled to a fee … for every entry made in the marriage notice book under this section.

28 Declaration to accompany notice of marriage

(1) No certificate for marriage shall be issued by a superintendent registrar unless the notice of marriage is accompanied by a solemn declaration in writing … made and signed at the time of the giving of the notice by the person by whom the notice is given …

(a) that he or she believes that there is no lawful impediment of kindred or alliance or other lawful hindrance to the marriage; …

(c) where one of the persons to be married is a child … that the consent of the person or persons whose consent to the marriage is required … has been obtained, that the necessity of obtaining such consent ahas been dispensed with …, that the court has consented to the marriage … or that there is no person whose consent is so required.

…

31 Marriage under certificate without licence

(1) Where a marriage is intended to be solemnized on the authority of certificates of a superintendent registrar … the superintendent registrar to whom notice of marriage has been given shall suspend or affix in some conspicuous place in his office, for 15 successive days next after the day on which the notice was entered in the marriage book, the notice of marriage …

(2) At the expiration of the said period of 15 days the superintendent registrar … shall issue a certificate in the prescribed form unless –

(a) the superintendent registrar is not satisfied that there is no lawful impediment to the issue of the certificate …

As you can see, any marriage that is not under the auspices of the Church of England will have to give the same notices before the couple will be granted a certificate to marry. For these non-Church of England ceremonies, the requirements for notice are as follows: the parties have resided in the district where notice is given for a period of at least seven days; they have declared that there are no lawful impediments to the marriage; they meet the residence requirements and the relevant fee is paid. Once the notice and the declarations have been given to the superintendent registrar, notice will be posted in a marriage notice book available for public inspection. A total period of 15 days will have to pass from the posting of the notice before the certificate authorising the marriage ceremony can be issued. It is important to remember that notice has to be given by both of the couples and must be in person.

1.3.1.2 Church of England (or Anglican) marriages

The formalities relating to these weddings are linked with religious tenets. It is possible that some of these requirements will be changed in the near future, perhaps due to their ‘old-fashioned’ nature. As before, read the following extracts from the Marriage Act 1949 to see how the notice must be given:

5 Methods of authorising marriage

A marriage according to the rites of the Church of England may be solemnized –

(a) after the publication of banns of matrimony;

(b) on the authority of a special licence of marriage granted by the Archbishop of Canterbury …;

(c) on the authority of a licence of marriage (other than a special licence) granted by an ecclesiastical authority having power to grant such a licence (… referred to as a common licence); or

(d) on the authority of a certificate issued by a superintendent registrar …

6 Place of publication of banns

(1) Subject to the provisions of this Act, where a marriage is intended to be solemnized after the publication of banns of matrimony, the banns shall be published –

(a) if the persons to be married reside in the same parish, in the parish church of that parish;

(b) if the persons to be married do not reside in the same parish, in the parish church of each parish in which one of them resides …

7 Time and manner of publication of banns

(1) … banns of matrimony shall be published on three Sundays preceding the solemnization of the marriage during morning service, or if there is no morning service on a Sunday on which the banns are to be published, during evening service …

You will have seen that three types of marriage are permitted:

• marriage after publication of banns;

• marriage under common licence; and

• marriage under special licence.

The former is more common and is also cheaper! The requirements are for the banns to be published for three consecutive Sundays in the parish churches where the parties reside (having at least 15 days’ residence) and in the church where the marriage will be conducted, if different. Publication means that the banns are both entered into a written register and also read out in the church itself during a service. Once the banns have been published the marriage ceremony can be conducted immediately. It should be noted that the Church of England has mooted the possibility of changing this type of preliminary requirement and proposed that the requirement for the reading of banns be removed. No steps have been taken towards the abolishment of the requirement.

Marriage under common licen...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of International Legislation
• 1 Marriage – The Starting Point
• 2 Nullity and Legal Separation
• 3 The Law on Divorce
• 4 Property and Finance on Divorce
• 5 Property and Finance without Divorce
• 6 Child Support
• 7 Domestic Violence
• 8 The Law Relating to Children
• 9 The Private Law Relating to Children
• 10 The Public Law Relating to Children
• 11 Adoption
• 12 The Inherent Jurisdiction – Wardship
• 13 End of Chapter Assessment – Outline Answers
• Index