Straightforward Guide To Divorce And The Law

Revised Edition 2015

• Editorial: Straightforward Publishing Digital
• Año: 2015
• ISBN:
  9781847165527
• Categoría: Law
• Categoría: Family Law

A Straightforward Guide to Divorce and the Law has been updated to reflect changes in the legal system affecting divorce proceedings to 2015 and is designed exclusively for anyone who wishes to proceed with a divorce case without the use of a solicitor or who wishes simply to learn more about the processes involved in divorce and the judicial system. The book is clear and concise and will prove to be an invaluable guide. All the relevant forms are included.

1

Marriage and Cohabitation

The main law governing marriage in England states that marriage is the ‘voluntary union for life of one man and one woman to the exclusion of all others’, although this has now been modified with the introduction of the Marriage (Same Sex Couples) Act 2013. Given that the above Act is so new, we will begin by discussing conventional marriage.

Much has changed in family life over the years and today, marriages break up with alarming frequency and more and more people choose to live together as opposed to marrying.

This section is about the institution of conventional marriage and how it works within the law. We will look at who can get married, the engagement, marriage formalities, effects of marriage, cohabitation and agreements. Reference will be made to the 2013 Act towards the end of the chapter although the body of the law that applies to conventional marriage also applies to same sex marriages..

Marriage

The law states that, in order to marry, a person must:

a) be unmarried

b) be over the age of 18

You are also legally a single person if your previous marriage has been annulled. Basically, anyone who wants to marry must be a single person in the eyes of the law. A person must be over 18. If a person is aged between 16-18 parental consent must be gained. A marriage where one of the persons is under 18 is absolutely void, unless parental consent has been gained. If someone marries between the ages of 16-18 the marriage is voidable as opposed to void (see below). Parents, guardians or the courts must consent to a marriage for someone between 16-18 years old.

The Civil Partnerships Act 2004 has introduced civil unions between same sex partners. Through a Civil Partnership, people of the same sex will acquire many of the rights of a conventional married couple. See chapter 11 on civil partnerships. However, the law of conventional marriage specifies that the marriage must be between partners of opposite sexes. In 2013, the Marriage (Same sex Couples) Act was introduced which now allows same sex couples the same rights to marry as the law covering conventional marriage. There are some differences between the two laws, particularly the right to get married in a church. and this is outlined below.

No marriage can take place between close relations, i.e. blood relations, or non-blood relations where the relation is so close that a ban on intermarriage is still imposed. Adopted children are generally treated in law as blood relatives. Brothers in law and sisters in law can marry as can stepparent and stepchild if the stepchild has not been raised as a child of the family and is over 21 years old.

Marriages must be voluntary

A marriage must be voluntary and not brought about through coercion. This brings about a problem in law when arranged marriages take place, as is the custom in certain ethnic groups. In general the law does not interfere with arranged marriages.

However, the courts will get involved if it is felt that there is duress and there is a threat of injury to life or liberty or a child is threatened with expulsion from home or community.

Forced marriage

A forced marriage is where one or both people do not (or in cases of people with learning disabilities, cannot) consent to the marriage and pressure or abuse is used. It is an appalling and indefensible practice and is recognised in the UK as a form of violence against women and men, domestic/child abuse and a serious abuse of human rights.

The pressure put on people to marry against their will can be physical (including threats, actual physical violence and sexual violence) or emotional and psychological (for example, when someone is made to feel like they’re bringing shame on their family). Financial abuse (taking your wages or not giving you any money) can also be a factor.

Legislation on Forced Marriage

The Anti-Social Behaviour, Crime and Policing Act 2014 makes it a criminal offence to force someone to marry. This includes:

• Taking someone overseas to force them to marry (whether or not the forced marriage takes place)

• Marrying someone who lacks the mental capacity to consent to the marriage (whether they’re pressured to or not)

• Breaching a Forced Marriage Protection Order is also a criminal offence

• The civil remedy of obtaining a Forced Marriage Protection Order through the family courts will continue to exist alongside the new criminal offence, so victims can choose how they wish to be assisted

Forcing someone to marry can result in a sentence of up to 7 years in prison. Disobeying a Forced Marriage Protection Order can result in a sentence of up to 5 years in prison

Forced Marriage Unit

The Forced Marriage Unit (FMU) is a joint Foreign and Commonwealth Office and Home Office unit was which set up in January 2005 to lead on the Government’s forced marriage policy, outreach and casework. It operates both inside the UK, where support is provided to any individual, and overseas, where consular assistance is provided to British nationals, including dual nationals.

The FMU operates a public helpline to provide advice and support to victims of forced marriage as well as to professionals dealing with cases. The assistance provided ranges from simple safety advice, through to aiding a victim to prevent their unwanted spouse moving to the UK (‘reluctant sponsor’ cases), and, in extreme circumstances, to rescues of victims held against their will overseas. See useful addresses and information for further details.

Marriages which can be annulled

Void marriages

Certain marriages are regarded in law as void. This means that, in the eyes of the law the marriage has never taken place at all. Marriages are void where:

• one of the parties is under 18

• the parties are closely related

• one of the parties is not a single person, i.e. the marriage is bigamous or polygamous.

• The parties are regarded in law as being of the same sex.

Certain marriages are regarded in law as valid until they are annulled. These are ‘voidable’ marriages and, in the eyes of the law can be annulled by either party.

Grounds for annulment

In order for a court to annul a voidable marriage the following grounds have to be demonstrated:

a) the marriage has not been consummated

b) the husband or wife had not understood the nature of the ceremony

c) the marriage was to someone of unsound mind

d) the marriage was to someone with venereal disease.

Getting engaged to be married

An engagement is not a precondition of marriage, as it once was. This is often the case, however. A couple will, after engagement, publicly announce their intention to be married. Legal disputes can, however, arise and couples can dispute ownership of property and gifts. An engagement ring is regarded as an outright gift in the eyes of the law.

If money has been expended on larger items, such as a house, in the anticipation of marriage, and the marriage has fallen through then this will become a legal dispute with each case turning on its own merit and the circumstances of any contract, written or unwritten. Certain insurance companies can offer insurance against weddings falling through or being cancelled. Cover can also be obtained for honeymoons falling through.

If a couples wedding falls through they are legally obliged to return any wedding gifts received to their senders.

Marriage formalities-conventional marriage

For a marriage to be valid, a formal licence and a formal ceremony are necessary. Authority to licence marriages is given to a priest of the Anglican Church and to civil officials (registrars). Every couple, therefore, must obtain permission to marry from an Anglican church or from a civil official. Many couples, because of cost, choose to marry in a registry office.

Religious ceremonies

Religious ceremonies are categorized according to whether they are solemnized by:

• The Anglican Church, including the Church of Wales

• Jews or Quakers (for whom special rules apply under the Marriage Act 1949

• Some other recognized religion.

Church of England-licence to marry

About half of all religious marriage ceremonies take place in the Church of England. There are four ways to effect the necessary preliminaries for an Anglican marriage. Only one may be used. In order to obtain consent to marry in the Church of England you must either:

• publish banns

or obtain one of the following:

• a common ecclesiastical licence

• a ‘special licence, also from the ecclesiastical authorities

• a superintendent registrars certificate from the civil authorities.

Publishing banns

The banns, or the names of the couple who intend to marry, have to be read aloud (published) in the church of the parish where the couple are resident. If the couple are resident in different parishes then the banns must be read in each parish church, in one or other of which the ceremony will take place. The priest needs seven days notice in writing from both parties before the banns can be read. The priest has to read them audibly in church on three successive Sundays. If there is no objection from any member of the congregation then, after the third reading the marriage can take place. If any objections are raised, and voiced audibly by a member of the congregation then the banns are void.

Common licence

This dispenses with the banns and is given by the Bishop of the diocese. You must make a sworn affidavit that there is no impediment to the marriage and that any necessary parental consent has been given and that you have resided in the parish for 15 days.

Once granted, the licence to marry has immediate effect and is valid for three months. It will specify the church or chapel in which the marriage is to take place.

Special licence

This is issued by the Archbishop of Canterbury and enables a marriage to take place at any time or place. It also dispenses with the 15-day residence period. To get such a licence, which would for example be applicable if one of the parties was seriously ill, a sworn statement is required.

Superintendent registrars certificate

Although it is the norm for a marriage in the Church of England to take place after banns have been read, or after obtaining a licence from church authorities, an Anglican wedding can take place after a superintendent registrars certificate has been obtained. The parties must give notice to a superintendent registrar in the district in which they have resided for at least seven days before giving notice. They must make a solemn declaration that there are no lawful impediments to their union and that they meet the residential requirements. In the case of persons between 16-18, th...