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University of Derby - Family Law and Practice

Key Areas of Study in Family Law

  • Topics Covered:

    • Marriage: Formalities and defective formalities, nullity

    • Civil Partnerships

    • Cohabitation

    • Divorce

    • Family property during marriage or cohabitation

    • Property adjustment on divorce

    • Private law relating to children

    • Protection from domestic abuse

What is Family Law?

  • Definition: Family Law encompasses the formation and dissolution of legal relationships, the consequences of these relationships, and the protection of individuals within a family context.

  • Typical Issues Addressed:

    • Divorce

    • Child Arrangement Orders

    • Non-Molestation Orders

Marriage and Civil Partnership

  • Questions Explored:

    • Definition of marriage

    • Creation and validity of a marriage

    • Void and voidable marriages

    • Understanding forced marriage

Definition of Marriage

  • Legal Definition:

    • According to Hyde v Hyde (1866) LR 1 P&D 130: "Marriage is defined as the voluntary union for life of one man and one woman to the exclusion of all others" [Lord Penzance]

Valid Marriage Requirements

  • Law Commission Report:

    • A valid marriage is binding and not defective, can only be ended by death or divorce.

    • Parties must consent and have the capacity to consent.

  • Case Reference:

    • Re E (2005) - Explores capacity to marry, highlighting the importance of understanding the marriage contract. Additionally, the case emphasizes that any form of coercion or lack of mental capacity can render a marriage voidable, protecting individuals from entering into unions that they do not fully comprehend.

    • Key Judgment by Munby J:

    • Explores that the court's concern is solely if a person has the capacity to understand the nature of the marriage contract without evaluating the wisdom of their marriage choice.

Void Marriages - Section 11 of Matrimonial Causes Act 1973

  • Criteria for Void Marriages:

    • Parties within prohibited degrees of relationship

    • Either party under age of 18

    • Parties intermarrying disregarding marriage formation requirements

    • One party married at the time of the marriage

    • In polygamous marriages outside the jurisdiction, both parties must be domiciled in England or Wales

  • Case Reference:

    • Akhter v Khan (2018): A Muslim marriage could be declared void due to the husband’s refusal to undergo a civil ceremony after an Islamic ceremony.

Prohibited Degrees of Relationship

  • Categories:

    • Parent or child (including adopted)

    • Grandparent or grandchild

    • Siblings (including half-siblings)

    • Aunt/Uncle and niece/nephew

Formalities of Marriage

  • Importance of Compliance:

    • Ensures parties have capacity, consent, and proof of marriage through registration.

    • Failure leads to void marriages or non-marriage status.

  • Case Reference:

    • Hudson v Leigh (2009): Marriage was contested due to uncertainty about whether a marriage had actually taken place.

Legal Requirements for Marriage

  • Public Notice:

    • Notice of the ceremony must be made available publicly (e.g., reading of the Banns).

    • Specific conditions apply depending on whether Anglican or non-Anglican ceremonies are held.

  • Conduct of the Ceremony:

    • Must be officiated by an authorized person and be recorded in the marriage register.

Voidable Marriages - Section 12 of Matrimonial Causes Act 1973

  • Definition: A voidable marriage is one that can be annulled under certain circumstances, including lack of consummation or lack of valid consent related to duress or mental health issues.

  • Grounds Include:

    • Non-consummation due to incapacity/refusal

    • Lack of valid consent due to duress, mistakes, unsoundness of mind, or venereal disease.

Forced Marriages Statistics and Context

  • Statistics from the Forced Marriage Unit (FMU) in 2024 indicated 1,355 cases related to forced marriages, of which:

    • 35% involved victims aged 17 and under

    • 34% involved victims aged 18 to 25

    • 71% involved female victims

  • Definition of Forced Marriage:

    • Occurs when one or both parties enter a marriage without consent or free will, usually due to pressure or coercion.

Legal Consequences and Protection for Forced Marriages

  • Criminalization:

    • Since the Anti-Social Behaviour, Crime and Policing Act 2014, forcing someone to marry is a criminal offence.

  • Legal Remedies:

    • Individuals forced into marriage can apply for annulment based on lack of consent under the MCA 1972.

  • Notable Cases:

    • P v R (2003) establishes grounds for annulment due to duress.

Civil Partnerships

  • Definition: A civil partnership is a legally recognized union, allowing similar rights as marriage, applicable to same-sex and opposite-sex couples (post-2019 changes).

  • Creation Requirements:

    • Both parties must be at least 18, not already in a civil partnership or married, and not within prohibited degrees of relationship.

  • Prohibited Relationships under CPA 2004:

    • Includes same restrictions as marriages regarding adoptive and familial relationships.

Conclusion

  • Lessons will continue with discussions on Divorce in the next session and preparation for the workshop focused on Marriage and Civil Partnerships. Students are encouraged to come prepared.