Marriage and divorce. Definition Hyde v Hyde (1866) ”I conceive that marriage, as understood in Christendom, may... be defined as the voluntary union.

Marriage and divorce

Definition

• Hyde v Hyde (1866)”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.” Lord Penzance

voluntary (otherwise marriage is voidable)for life (when entering into marriage the intention must be for life)monogamous (yes, however not only between a man and a woman)

Recent developments

• Civil Partnership Act 2004- allowed same-sex couples to obtain essentially the same rights and

responsibilities as civil marriage

• Marriage (Same Sex Couples) Act 2013- legalised full same-sex marriage starting from March 2014

Civil marriage and religious marriage• both require the presence of an authorised person and two

competent witnesses who sign the marriage register

• both require a marriage licence to be obtained

- civil marriages cannot take place in a religious venue and no religious content is allowed in a civil marriage ceremony

Common law marriage

• abolished under the Marriage Act 1753• nowadays it is frequently used to describe mere cohabitation which

does not generally confer any of the rights or obligations associated with marriage• cohabitation contract/living together agreement- outlines rights and obligations of each partner to each other

Rights and obligations

• joint bank account – joint money, automatically inherited after the spouse’s death, joint debt• children – parental responsibility, contact with children, financial

support• death and inheritance – intestate property goes to the spouse

(normally)• financial support/maintenance – duty to support the spouse unless

otherwise agreed• housing – right to live in the matrimonial home• sexual relations – no consummation: reason for annullment, rape

Bars to marriage

• Youth

- Family Law Reform Act 1969 – lowered the age of majority to 18- marriage of persons over 16 valid with consent of parents

Consangunity

Mother (adoptive or former adoptive) Father (adoptive or former adoptive)Daughter (adoptive or former adoptive) Son (adoptive or former adoptive)Father's mother Father's fatherMother's mother Mother's fatherSon's daughter Son's sonDaughter's daughter Daughter's sonSister BrotherFather's sister Father's brotherMother's sister Mother's brotherBrother's daughter Brother's sonSister's daughter Sister's son

VOID• persons under 16 • close relatives never existed under law

VOIDABLE• without consent• under duress• fraud (identity) existed until annulled

Definition

• the legal dissolution of a marriage by a court or other competent body

• prior to Matrimonial Causes Act 1857 - divorce was governed by the ecclesiastical Court of Arches and the canon law of the Church of England (made possible only to the very wealthy as it required either a complex annullment process or a private bill)

• Matrimonial Causes Act 1937- made divorce easier, particularly for women

Doctrine of matrimonial offence• divorce would only be granted to the ”innocent” party to a marriage who

could prove that the other party was guilty of some wrongful conduct:

a) adulteryb) crueltyc) desertion

Matrimonial Causes Act 1973

• Sets out the only ”ground” for divorce under English law the marriage has irretrievably broken down - Five facts that constitute this ground:1. adultery2. unreasonable behaviour3. two years seoparation (consenting parties)4. five years separation (only one party consents)5. two years desertion

• one can get a divorce only after the marriage lasted for a year• if the divorce is uncontested, the procedure lasts about 6 months

Divorce proceedings

• filing of Divorce Petition and if necessary Statement of Arrangements for the Children (£410 fee)

• documents issued by divorce Couonty Court and posted to the respondent• respondent returns Acknowledgement of Service to the Court (if he/she does not you

will need to consider Bailiff Service, Deemed Service or other options)• petitioner completes affidavit in Support of Petition and Request for directions• a judge will then consider all the divorce papers and if he/she is satisfied issue a

Certificate of Entitlement to a Decree and Section 41 Certificate (confirming he/she is content with arrangements for any children)

• Decree Nisi is granted• Six weeks later the application can be made by the Petitioner for the Decree

Absolute.

Radmacher v Granatino 2010

• appeal before the Supreme Court concerning the question of whether the Court of Appeal erred in finding that pre-nuptial contracts ought to be given decisive weight, where entered into freely by both parties• the appellant and respondent were married in London in 1998• the husband is French and the wife German• they entered into an ante-nuptial agreement before a notary in Germany three

months before the marriage at the instigation of the wife• the agreement was subject to German law and provided that neither party was to

acquire any benefit from the property of the other during the marriage or on its termination• the parties separated in October 2006 after 8 years of marriage. They have two

daughters, born in 1999 and 2002

High Court - the husband applied to the court for financial relief and was granted a sum in excess of £5.5m which would afford him an annual income of £100,000 for life and allow him to buy a home in London where his children could visit him- the judge took into account the existence of the ante-nuptial agreement but reduced the weight she attached to it because of the circumstances in which it was signed

Court of Appeal- the wife appealed successfully to the Court of Appeal, which held that in this case the agreement should have been given decisive weight and the husband should only be granted provision for his role as the father of the two children and not for his own long term needs

Supreme Court judgment- the husband appealed to the Supreme Court which dismissed the appeal (8 to 1 majority)- the substantive judgment is given by Lord Phillips (President), with an additional judgment from Lord Mance. Lady Hale gives a dissenting judgment

• Lord Phillips observed that it used to be contrary to public policy for a couple who were married or about to be married to make an agreement which provided for the contingency that they were about to separate, on the basis that this might encourage them to do so, and the court paid no regard to them• after 1957 separation agreements were given considerable weight, as

increasingly were postnuptial agreements, in marked distinction to the treatment of ante-nuptial agreements • what weight should be given to an ante-nuptual agreement?

1. What were the circumstances when signing the agreement? (voluntary, without undue pressure, informed of implications)

2. Did the foreign elements enhance the weight of the agreement? (recognized under German but not English law)

3. Was it fair or just for the court to depart from the agreement when making the order? (more weight should be given to the agreement if entered into freely than to what courts consider fair or just, HOWEVER …children, personal autonomy, existing property)

Lady Hale’s dissenting judgement- stated that modern marriage still possesses an irreducible minimum,

which includes a couple's mutual duty to support one another and their children- the issue in this case was how far individuals should be free to rewrite

that essential feature of the marital relationship as they chose

Implications

• the ruling maintains the strong role of the English courts in reviewing prenuptial agreements for fairness in a far more interventionist way than courts in most of the rest of the world• the decision does not make prenuptial agreements necessarily

binding it directs judges to ensure “fairness” on a case-by-case basis

1. Dmitry Rybolovlev's divorce from Elena Rybolovleva; estimated at $4.5 billion3. Bernie Ecclestone's divorce from Slavica; estimated at $1-$1.2 billion 7. Mel Gibson's divorce from Robyn Moore Gibson; estimated at $425 million 10. Michael Jordan's divorce from Juanita Jordan; estimated at $168 million 17.,18., 19. Rupert Murdoch, Tiger Woods, Steven Spielberg - $100 million 20. Madonna's divorce from Guy Ritchie; estimated at $76-$92 million 32. Mick Jagger's divorce from Jerry Hall; estimated between $15 and $25 million

Thank you!