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| Ceremony Requirements Hudson v Leigh (2009) | The applicant (L) applied for a declaration that a religious ceremony did not effect a marriage between himself and the respondent (H). L and H had been engaged to be married. They arranged for a religious, but not legally binding, ceremony to take place in South Africa. It was to be followed by a civil ceremony at a register office in the United Kingdom some months later. At the religious ceremony, several of the formalities that were necessary for a marriage to be held valid under South African law were not complied with. The relationship between L and H broke down and no civil ceremony ever took place. H claimed that the religious ceremony constituted a valid marriage and brought divorce proceedings. In the alternative, she sought a decree of nullity on the grounds that the marriage was void or voidable on the basis of non-compliance with the formal requirements of South African law. L submitted that the religious ceremony amounted to a "non-marriage" or a "non-existent marriage". He argued that the ceremony was clearly not a marriage, notwithstanding that it clearly had the trappings of one, and L and H did not intend to get married by way of that ceremony. H submitted that there was no concept or entity of a "non-marriage" or "non-existent marriage" in English law. She argued that the Matrimonial Causes Act 1973 created a code for flawed marriages, in which neither concept appeared. She also contended that the court had no jurisdiction to make the declaration sought as the Family Law Act 1986 s.58(5)(a) did not allow a court to declare that a marriage was void. Declaration granted. It was clear that there was such a concept as a "non-marriage" or "non-existent marriage". The court had to be able to rule that a ceremony or event, while having the trappings of marriage, failed fundamentally to effect one, such that it neither needed nor was susceptible to a decree of nullity to determine its lack of any legal status. The declaration sought was not outlawed by s.58(5) of the 1986 Act where it was made to declare that there never was a marriage, as distinct from being a declaration that a given marriage was void at its inception. |
| Ceremony requirements MA v J (2012) | The applicant (H) and the respondent (W) sought a declaration that their marriage ceremony had resulted in a valid marriage. The Attorney General intervened to oppose the application. In 2002 H and W took part in a marriage ceremony conducted by an Imam under Sharia law at a mosque. Unknown to H and W, they had failed to give notice of the marriage to the superintendent registrar and the marriage was not formally registered so there was no certificate. The Attorney General submitted that the ceremony was of no effect under English law as it failed to comply with the requirements of the Marriage Act 1949 and was a non-marriage or void marriage. H and W relied on the presumption of marriage and also submitted that the marriage ceremony was in its character of the kind contemplated by the Act. They argued that they had lived together as a married couple since the ceremony; accepted the assurances of the chairman of the mosque and the Imam that they had done everything they needed to do; the ceremony purported to be a lawful marriage, it bore enough of the hallmarks of marriage and the parties intended it to be a valid marriage; the mosque was a registered building and the ceremony took place in the presence of an authorised person. Declaration granted. The central issue was whether what took place was sufficiently within the 1949 Act for the marriage to be capable of being a valid marriage under English law.The evidence clearly established that some of the requirements of the Act were not fulfilled and the presumption of marriage could not be relied upon to establish that the relevant missing statutory requirements were fulfilled. It was clear that the parties intended to contract a marriage which was valid under English law but intention alone was unlikely to be sufficient to make a marriage potentially valid under English law. In addition to the parties' intention, the ceremony which took place was sufficient as a ceremony to constitute a valid marriage. The ceremony of marriage that had taken place was of the kind permitted by English law and in a form capable of producing a valid marriage. |
| Consent Sheffield CC V E (2004) | The court had to determine a preliminary issue arising in proceedings brought under the inherent jurisdiction of the Family Division of the High Court by the claimant local authority, which sought to prevent the first defendant alleged patient (E) from marrying or associating with the second defendant (S). The local authority brought the instant proceedings on the basis that E lacked the capacity to make decisions about where she should live and whether she should have contact with or marry S. The preliminary issue to be determined was whether the appropriate test for E's capacity to marry was (i) whether E was capable of understanding the nature of a marriage contract generally, or (ii) whether E had the capacity to understand the implications of marriage to S. Held, determining the preliminary issue, that it was not enough for E to appreciate that she was taking part in a marriage ceremony or understand its words; rather E had to understand the nature of the marriage contract and be mentally capable of understanding the duties and responsibilities that normally attached to marriage. The test was capacity to understand the nature of the contract of marriage and not capacity to understand the implications of a particular marriage. The lawfulness of a marriage depended exclusively upon consent and the court had no jurisdiction to determine whether marriage in general or E's marriage to S in particular was in her best interests. When exercising its inherent jurisdiction in relation to an adult incompetent, the court was only able to declare that something was lawful, notwithstanding the absence of any valid consent, by virtue of the operation of the doctrine of necessity, which had no operation in relation to marriage. |
| Intersex People W v W (2001) | H did not contest W's divorce petition but sought a decree of nullity during ancillary relief proceedings. H contended that the marriage was void because W was not a woman but a physical inter-sex. From the time when W had been able to choose her sexuality she had lived as a woman and had undergone gender reassignment surgery which had allowed the marriage to be consummated and that was sufficient to demonstrate that W was a woman for the purposes of the marriage. |
| Forced Marriage A Local Authority v N (2007) | The applicant local authority sought a 12-month supervision order and orders pursuant to the court's inherent jurisdiction to ensure the safety of a child (K) for the entirety of her minority.. K was 16 years old, and lived with her parents and six siblings. The family were Iraqi Kurds. When K was only 15 she was unlawfully married by her family to a 27-year-old man (X) in a Muslim ceremony. The marriage was void as a matter of English law. The local authority argued that the court should make orders preventing K, until her 18th birthday, from either marrying or leaving the jurisdiction without the permission of the court. Applications refused. If K required to be protected, then the appropriate way to achieve that would be by making her a ward of court. The situation where the appropriate exercise of the court's powers was most urgently and imperatively required was the forced marriage. Forced marriage was intolerable, and the court must bend all its powers to preventing it happening. However, arranged marriages were to be respected as a conventional concept in many societies and were for that reason to be supported.The court should not normally invade the sphere of parental obligation and parental responsibility unless there was a real reason to fear that the child would not be adequately protected by the parents or that the child required to be protected from the parents.K's interests were best met by making no order. There was no adequate case for invoking the court's protective jurisdiction. |
| Forced Marriage Westminster CC V IC (2006) | The appellants (K and N) appealed against a declaration that the marriage of their son (C) was not valid under English law. K and N were British nationals of Bangladeshi origin who were domiciled and habitually resident in England and Wales. C, who suffered from autism and severe impairment of his intellectual functioning, lacked the fundamental capacity to marry under English law. Marriage was not, however, precluded in Bangladesh and C was married in a Muslim ceremony conducted over the telephone, he being in England and his bride being in Bangladesh.Under Matrimonial Causes Act 1973 s.12(c) the marriage was merely voidable rather than void and the court therefore had no power to deny it recognition. Appeal allowed. Even though there was authority to the effect that there were alternative bases for the recognition of a foreign marriage falling foul of the dual domicile rule, such exceptions to the rule did not assist N and K, and the judge had been correct in his application of it. (2) Equally, the judge had been correct to introduce public policy considerations. C lacked the capacity to marry in English law and it was inconceivable that he could be lawfully married in England and Wales. There was expert evidence to suggest that the marriage was potentially highly injurious to him and, moreover, were his wife to engage in physical intimacy with him she would be guilty of rape or sexual assault under English law. N and K's engineering of the marriage was potentially, if not actually, abusive to C and it was the duty of the court to protect him from such abuse. Lack of consent made a marriage voidable rather than void. Moreover, the Family Law Act 1986 made it clear that no declaration could be made by a court to the effect that a marriage was at its inception void. The only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity.The appeal would therefore be allowed, but only to the extent of varying the language of the declaration so that it declared that C's marriage, valid according to the law of Bangladesh, was not recognised as a valid marriage in the jurisdiction of the English courts. |
| Civil Partnership and Same sex marriage Wilkinson v Kitzinger (2006) | The petitioner (W) applied for a declaration as to her marital status under the Family Law Act 1986 s.55. W and the first respondent, who were both female and domiciled in the United Kingdom, had married under the law of British Columbia, which recognised as valid marriages between persons of the same sex. W, who had issued the instant proceedings in advance of the implementation of the Civil Partnership Act 2004, sought a declaration that the marriage was a valid marriage at its inception and, if necessary, a declaration of incompatibility under the Human Rights Act 1998 s.4 in relation to the Matrimonial Causes Act 1973 s.11(c). Held, dismissing the petition, that (1) W's claim related to an area of considerable social, political and religious controversy in respect of which there was no consensus across Europe. Parliament had enacted the 2004 Act to accord same sex relationships all the rights, responsibilities, benefits and advantages of civil marriage save the name, and to remove the legal, social and economic disadvantages suffered by same sex couples. |
| Civil Partnership and same sex marriage Schalk and Kopf v Austria (2010) | The complainants (S), a same-sex couple, complained that they were discriminated against because they were denied the possibility of marrying or having their relationship otherwise recognised under Austrian law. They complained of a breach of the European Convention on Human Rights 1950 art.12 and art.14 taken in conjunction with art.8. S applied to the appropriate Austrian authority to proceed with the formalities to enable them to contract marriage. The application was refused on the basis that, under Austrian law, marriage could only be contracted by persons of the opposite sex. S submitted that (1) as the institution of marriage had undergone considerable changes there was no longer any reason to refuse same-sex couples access to marriage and the wording of art.12 did not necessarily have to be read in the sense that marriage was only possible between persons of the opposite sex, nor did it mean that states had unlimited discretion in regulating the right to marry; (2) the state had failed to justify the discriminatory treatment of S as a same-sex couple contrary to art.14 taken in conjunction with art.8. In particular, the state had failed to show that the exclusion of same-sex couples from marriage was necessary to protect the traditional family. There was no European consensus regarding same-sex marriage and, as matters currently stood, the question of whether to allow same-sex marriage was left to regulation by the national law of the relevant state. The articles of the Convention should be construed in harmony with one another. Therefore, having concluded that art.12 did not impose an obligation on states to grant same-sex couples access to marriage, art.14 taken in conjunction with art.8 could not be interpreted as imposing such an obligation either. |
| Family Property Abbott v Abbott (2007) | The appellant wife (W) appealed against a decision of the Court of Appeal of Antigua and Barbuda allowing an appeal by the respondent husband (H) against a decision regarding the beneficial ownership of the parties' former matrimonial home, its furniture, and some shares. The trial judge held that H and W had an equal beneficial interest in the matrimonial home, given that they were both liable for repaying the mortgage and there was no reason to believe that H's mother wanted to make a gift of the land to H alone. The Court of Appeal held that there was no factual basis for the inference that the land was a gift to both H and W, and took the view, that W could only acquire an interest by way of direct contributions to the mortgage payments. The Court of Appeal should not have interfered with the trial judge's findings on the beneficial ownership of the matrimonial home.The parties' whole course of conduct in relation to a property had to be taken into account in determining their shared intentions as to its ownership. If a parent gave financial assistance to a newly-married couple to acquire a home, the usual inference was that it was intended as a gift to both of them. In the instant case, that inference was supported by H and W's behaviour throughout the marriage. The fact that they arranged their finances entirely jointly and undertook joint liability for the repayment of the mortgage was significant. The shares belonged to H exclusively. W had made a concession to that effect before the Court of Appeal, and that concession was properly made. There should be an order that the house be sold and the proceeds divided equally, subject to an adjustment in favour of W for 20 per cent of the costs of acquiring the furniture. |
| Family Property Stack v Dowden (2007) | The appellant (S) appealed against an order specifying the division of the net proceeds of sale of the home he had shared with his former partner (D) and their children. The purchase was funded by the sale of their previous property, which had been in D's sole name, plus savings in D's name, and a mortgage held in both names. S paid the mortgage interest and endowment policy premiums, while together they paid off the capital, with D contributing a greater proportion. When they bought the house, D and S had been cohabiting for 18 years and had four children. Nearly all aspects of their respective finances had been kept separate. The issues were whether a conveyance into joint names established a prima facie case of joint and equal beneficial interests and whether the Court of Appeal had been correct to overrule the judge's order that D compensate S for the cost of his accommodation. Appeal dismissed. The starting point where there was joint legal ownership was joint beneficial ownership. The onus was upon the person seeking to show that the parties intended their beneficial interests to be different from their legal interests and in what way. Accordingly, it was for D to show that the common intention when they bought the house was that she and S should hold the property otherwise than as joint beneficial tenants, and there were, on the evidence, many factors for her to rely on. |
| Family Property Jones v Kernott (2011) | The appellant (J) appealed against a decision declaring that the property co-owned by her and the respondent (K) was held by them as tenants in common in equal shares. In line with the decision in Stack v Dowden [2007] UKHL 17, [2007] 2 A.C. 432, where a property was purchased in the joint names of a married or unmarried couple for joint occupation, who were both responsible for any mortgage, and where there was no express declaration of their beneficial interests, there was a presumption that the beneficial interests coincided with the legal estate. That presumption could be rebutted by evidence of a contrary intention. Any challenge to the presumption was not to be lightly embarked on, since a decision to buy a property in joint names indicated an emotional and economic commitment to a joint enterprise, and the notion that in a trusting personal relationship the parties did not hold each other to account financially, was underpinned by the practical difficulty of taking any such account after years of living together. The search was primarily to ascertain the parties' actual shared intentions, whether expressed or to be inferred from their conduct. However, where it was clear that the beneficial interests were to be shared, but it was impossible to divine a common intention as to the proportions in which they were to be shared, it was for the court to impute an intention to the parties which they might never have had. |
| Family Property Thorner v Majors (2009) | The appellant (D) appealed against a decision that proprietary estoppel could not operate in his favour so as to entitle him to inherit the estate of his deceased uncle (P). He had made a will in 1997 leaving the residue of his estate, including his farm, to D but had subsequently destroyed the will and died intestate. D had worked at P's farm for no remuneration from 1976 onwards, and by the 1980s, he had come to hope that he might inherit the farm. No express representation had ever been made, but D relied on various hints and remarks made by P over the years, which he claimed had led him to believe that he was to inherit the farm. The judge at first instance had found that D had the benefit of proprietary estoppel because he had reasonably understood P's words and acts as an assurance that he would inherit the farm and that P had intended them to be understood in that way. The issues for the instant court were (i) the character or quality of the representation or assurance made to D; (ii) whether, if the other elements for proprietary estoppel were established, D must fail if the land to which the assurance related was inadequately identified or had undergone a change during the period between the giving of the assurance and its eventual repudiation. D submitted that the Court of Appeal had been wrong to apply the "clear and unequivocal" test because it was not relevant to proprietary estoppel. Appeal allowed. (1) To establish a proprietary estoppel, the relevant assurance had to be clear enough. What amounted to sufficient clarity depended on context. There was some authority for the view that the "clear and unequivocal" test did not apply to proprietary estoppel. There was a degree of unreality in making a distinction between the meaning of written words and the meaning of spoken words. There had been insufficient reason for the Court of Appeal to reverse the trial judge's careful findings and conclusion. There was no reason to doubt that their common understanding had been that P's assurance related to whatever the farm consisted of at P's death. There was no ground on which to challenge the trial judge's discretion in determining the remedy and his order was to be restored. |
| Cohabitation J v C (1999) | The parents, who never married, had one daughter born in 1992. After the relationship ended the father won GBP 1.4 million on the national lottery. The mother applied for lump sum and property settlement orders under the 1989 Act Sch.1 para.4(1) which required the court to consider all the circumstances of a case including the financial needs of the child and both parents, when deciding how to examine its powers under Sch.1 para.1. Held, that a child was entitled to be brought up in circumstances which bore some resemblance to the father's standard of living even if riches were acquired after the end of the parents' relationship. Having regard to the father's resources and his obligations to his other children, the court ordered a lump sum of GBP 70,000 for the purchase of a suitable home for the child, her mother and half siblings, to be held on trust for the child during her dependency and to revert to her father afterwards. |
| Cohabitation Re Watson (1999) | Following the death of W, G applied for reasonable financial provision from his estate on the ground that she had lived in W's house as W's wife for more than two years before his death for the purposes of the Inheritance (Provision for Family and Dependants) Act 1975 s.1(1A). The Crown, to whom W's entire estate would otherwise pass as bona vacantia, opposed the application, contending that the financial arrangement between G and W suggested their relationship was a house sharing arrangement rather than one between spouses. Held, allowing the application, that, having regard to the wording of s.1(1A)(b) and the purpose of the Act, the internal nature of the relationship was more significant than its external appearance. However, the correct approach to deciding whether two people lived together as man and wife was to ask whether a reasonable person with normal perceptions would take such a view, always bearing in mind the multifarious nature of marital relations. |
| Cohabitation- reform? Gow v Grant | The appellant (C) appealed against a decision allowing an appeal by the respondent (R) against an award of compensation to C for economic disadvantage suffered during their cohabitation. C and R had cohabited in R's home from 2003 until 2008 when their relationship ended. R encouraged C to sell her home and to stop working, which she did. She sold her flat for £50,000 and used part of the proceeds to contribute to their living expenses. When the relationship ended, C moved to rented accommodation and brought an action for payment of a capital sum under the Family Law (Scotland) Act 2006 s.28. The issues to be determined in the instant appeal were whether an intention to benefit the other cohabitant was a necessary element under s.28(3)(b) and s.28(6); whether it was necessary for C to establish that R had derived actual economic benefit; whether any such benefit had to be in the interests of R alone; and the extent of any discretion regarding the amount of an award. Appeal allowed. Section 28 sought to achieve fairness in the assessment of compensation for contributions made or economic disadvantages suffered in the interests of the relationship. That was too narrow an approach: section 28 was designed to enable fair compensation to be awarded, on a "rough and ready" valuation, in cases where none could otherwise be claimed. The lack of any definition of cohabitation, or a qualifying period of cohabitation, had not proved to be a problem in Scotland where very few cases had involved short relationships or disputes regarding whether or not the parties had been cohabitants. The main lesson from the instant case was that such a remedy was practicable and fair. It did not impose the responsibilities of marriage upon unmarried couples but redressed the gains and losses flowing from their relationship. |
| What do we value in adult relationships? Burden v UK (2008) | The complainants (B), two elderly unmarried sisters, argued that the UK inheritance tax treatment that would apply on the first of their deaths contravened the European Convention on Human Rights 1950 art.14 taken in conjunction with Protocol 1 art.1. Each sister had written a will bequeathing her entire estate to the other sister. Under United Kingdom inheritance tax legislation, bequests to spouses or civil partners were exempt from inheritance tax. B argued that their relationship could be compared with that of husband and wife or a civil partnership, since they had chosen to live as they had and had assumed a responsibility to one another when doing so. Given that the purpose of the exemption for spouses and civil partners was the promotion of stable relationships, they contended that the denial of the same exemption for cohabiting adult siblings served no legitimate aim. Dismissed. The relationship between adult siblings on the one hand and between spouses or civil partners on the other was qualitatively different. The very essence of the sibling relationship was consanguinity, whereas the precise opposite was true of marriage or civil partnership. The relationships of marriage and civil partnership involved a public undertaking carrying with it rights and obligations of a contractual nature, which set those relationships apart from other types of cohabitation. |
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