Family Law Exam Sheet
Marriages
Formalities
Marriage Act 1949, Parts II and III Formalities
Those essential under MA, s49 are bold. The marriage will engage these if they are not
complied with “knowingly and wilfully” (MA, s49).
Anglican Quaker Jewish Other rel. Civil
Carried out Between Between Jewish Open doors No religious
according to Quakers or people service
rituals of other authorised
Church persons
2 witnesses According to the According to the 2 witnesses Open doors
usages of usages of
Quakers Jewish people
Conducted by a By a prescribed 2 witnesses
person in Holy form of words
Orders
In a church, In the By prescribed
chapel or other presence of a form of words
authorised registrar or
place authorised
person
Where in an In a registered In the
authorised place of presence of a
place, in the worship Registrar and
presence of a Superintenden
registrar t Registrar
In either a
registry office
or other
approved
premises
All marriages must give due notice and issue to the superintendent registrar, lest they
be declared void under MA, s49.
Where the couple have had a non-qualifying marriage that is not violating one of the
requirements that makes it automatically void, the court will decide whether or not the
,marriage is non-qualifying or void (in which case there will be financial remedies available) in
line with the following factors: Hudson v Leigh (2009):
1) Did it set out, or try, to be a lawful marriage?
2) Did it bear all, or enough, of the hallmarks of marriage?
3) Did the parties and officiant (“the key three”) believe, intend and understand it to give
rise to a lawful marriage?
4) What were the reasonable perceptions, understandings and beliefs of those there?
In Akhter v Khan (2020) the CA held that a plan to have a non-qualifying religious ceremony
followed by a legal marriage did not render the former void.
In Gereis v Yagoub (1997) the Court held a non-qualifying Greek Orthodox ceremony that
was intentionally non-qualifying not to be void.
Voidability Grounds
A marriage will be voidable (capable of being annulled) if any of the following factors apply
under MCA 1973, s12(1):
a) The marriage was not consummated due to either party being incapable
i) Physical incapacity that can be cured by a common operation that the party
denied is no incapacity at all: D v D
ii) Psychological incapacity must go beyond a lack of desire and be ‘invincible
repugnance’: Singh v Singh
b) The marriage was not consummated for reason of wilful refusal of the respondent
i) ‘A settled and definite decision, come to without excuse’: Horton v Horton
ii) Not merely a ‘loss of ardour’: Potter v Potter
iii) Includes refusal to arrange a religious ceremony after a civil one: Singh v
Kaur
iv) Consummation does not need to be ‘complete’ (R v R) or unprotected (Baxter
v Baxter), but it must be post-marital (Dredge v Dredge).
c) Either party did not validly consent to the marriage, whether in consequence of
duress, mistake, unsoundness of mind, or otherwise
i) For duress, ask “Were the threats, pressure, etc such as to destroy the reality
of consent and ovebear the will of A?” (Hirani subjective) / “(1) fear is of
sufficient degree, (2) reasonably entertained, (3) arising from external
circumstances for which A is not responsible” (Buckland objective).
1) Singh v Kaur: social and family pressures are not sufficient.
ii) For mistake, it must be to identity, not attribute (C v C: “the person before
you”), or it can be to the nature of a ceremony (Valier v Valier)
iii) For unsoundness of mind, the individual must not know (1) what a marriage
is, (2) what it means legally, and (3) the rights and duties of marriage (E v S).
iv) Otherwise means ‘so extremely drunk that their ability to consent without
inducement was impaired’: Sullivan v Sullivan.
, d) At the time of marriage, either party, though capable of consent, was suffering
continuously or intermittently from a mental disorder under the MHA 1983 that was to
such an extent or kind as to make them unfit for marriage
e) At the time of marriage, the respondent had a communicable STD
f) At the time of marriage, the respondent was pregnant by another
g) Either party has gained an interim GRA certificate after the marriage
h) Either party’s gender at the time of marriage was such legally by way of GRA
M(SSC)A 2013, s9(6) declares that, if any of the above were true at the time of a civil
partnership being converted to a marriage, then they work too.
Bars to relief (MCA, s13):
● A led R to believe through their conduct that they wouldn’t seek nullity order while
knowing that they could, and where it would be unfair to R to annul – s13(1)
● Three year limitation period on lack of consent, mental disorder, STD, pregnancy and
unknown gender at marriage – s13(2)
● Limitation on STD, pregnancy and gender at marriage grounds which is that they
must be unknown to the applicant – s12(3)
● Six month limitation ground on the interim GRA certificate ground – s13(2A)
If you want to apply for grounds c-f or h outside the 3 year limitation period then you have to
seek leave to apply on the basis that the circumstances were of such kind or extent as to
make the respondent unfit for marriage – s13(4)
Void Grounds
A marriage will be void (non-existent) if any of the following apply:
● Parties within prohibited degrees – s11(a)(i)
● Either party is under 18 – s11(a)(ii)
● Formalities as to formation not met (see above) – s11(a)(iii)
● Either party is already married or a civil partner – s11(b)
● Either party is in a polygamous marriage in another jurisdiction while living in England
or Wales – s11(d)
● The marriage was converted from a void civil partnership – s12A(2)
Prohibited degrees are listed at MA 1949, Sch 1, Para 1(1) and they are:
● Adoptive child or parent
● Child or parent
● Former adoptive child or parent
● Grandparent or grandchild
● Aunt or uncle, or niece or nephew
● Sibling
, MA 1949, Sch 1, Para 1(2) lays out degrees of affinity which will be treated as prohibited
unless parties are over 21 at the time of marriage and the younger party was not under 18
as a child of the relevant party at any time (1949, s1(3)). They are:
● Child of former spouse or civil partner
● Former civil partner or spouse of parent or grandparent
● Grandchild of former spouse or civil partner
Civil Partnerships
Civil partnerships are regulated by the CPA 2004, which follows the structure of the marriage
regime.
Formalities
2004 Act, Part II, Ch I.
● Both must sign the CP document in the presence of a civil partnership registrar and
two witnesses, who also sign – s2(1) and (3)
● There must be no religious service used at the signing – s2(5)
● CPs can be registered under standard, house-bound, detained or special procedures
(for those who are seriously ill) – s5(1)
The Standard Procedure
● Civil partners must register on approved premises or in a registry office with open
doors – s6(3A)-(3B)
● Notice of CP must be given to any registration authorities local to either or both
partners – s8(1)
● If either party is not a UK national then their immigration status must be stated along
with, potentially, some additional information and a photograph – s8A, 9A
● The names of the proposed civil partners must be made public during the waiting
period by the registration authority – s10
● Registration must then take place after that waiting period – s17
I’ve omitted the rest because the detail of procedure here is non-examinable.
The CPA 2004 has been amended to allow religious premises to be used for them where the
organisation managing the (e.g.,) church has permitted – s6(1), 6A.
Void Grounds
A civil partnership is void under one of four grounds – s49
Marriages
Formalities
Marriage Act 1949, Parts II and III Formalities
Those essential under MA, s49 are bold. The marriage will engage these if they are not
complied with “knowingly and wilfully” (MA, s49).
Anglican Quaker Jewish Other rel. Civil
Carried out Between Between Jewish Open doors No religious
according to Quakers or people service
rituals of other authorised
Church persons
2 witnesses According to the According to the 2 witnesses Open doors
usages of usages of
Quakers Jewish people
Conducted by a By a prescribed 2 witnesses
person in Holy form of words
Orders
In a church, In the By prescribed
chapel or other presence of a form of words
authorised registrar or
place authorised
person
Where in an In a registered In the
authorised place of presence of a
place, in the worship Registrar and
presence of a Superintenden
registrar t Registrar
In either a
registry office
or other
approved
premises
All marriages must give due notice and issue to the superintendent registrar, lest they
be declared void under MA, s49.
Where the couple have had a non-qualifying marriage that is not violating one of the
requirements that makes it automatically void, the court will decide whether or not the
,marriage is non-qualifying or void (in which case there will be financial remedies available) in
line with the following factors: Hudson v Leigh (2009):
1) Did it set out, or try, to be a lawful marriage?
2) Did it bear all, or enough, of the hallmarks of marriage?
3) Did the parties and officiant (“the key three”) believe, intend and understand it to give
rise to a lawful marriage?
4) What were the reasonable perceptions, understandings and beliefs of those there?
In Akhter v Khan (2020) the CA held that a plan to have a non-qualifying religious ceremony
followed by a legal marriage did not render the former void.
In Gereis v Yagoub (1997) the Court held a non-qualifying Greek Orthodox ceremony that
was intentionally non-qualifying not to be void.
Voidability Grounds
A marriage will be voidable (capable of being annulled) if any of the following factors apply
under MCA 1973, s12(1):
a) The marriage was not consummated due to either party being incapable
i) Physical incapacity that can be cured by a common operation that the party
denied is no incapacity at all: D v D
ii) Psychological incapacity must go beyond a lack of desire and be ‘invincible
repugnance’: Singh v Singh
b) The marriage was not consummated for reason of wilful refusal of the respondent
i) ‘A settled and definite decision, come to without excuse’: Horton v Horton
ii) Not merely a ‘loss of ardour’: Potter v Potter
iii) Includes refusal to arrange a religious ceremony after a civil one: Singh v
Kaur
iv) Consummation does not need to be ‘complete’ (R v R) or unprotected (Baxter
v Baxter), but it must be post-marital (Dredge v Dredge).
c) Either party did not validly consent to the marriage, whether in consequence of
duress, mistake, unsoundness of mind, or otherwise
i) For duress, ask “Were the threats, pressure, etc such as to destroy the reality
of consent and ovebear the will of A?” (Hirani subjective) / “(1) fear is of
sufficient degree, (2) reasonably entertained, (3) arising from external
circumstances for which A is not responsible” (Buckland objective).
1) Singh v Kaur: social and family pressures are not sufficient.
ii) For mistake, it must be to identity, not attribute (C v C: “the person before
you”), or it can be to the nature of a ceremony (Valier v Valier)
iii) For unsoundness of mind, the individual must not know (1) what a marriage
is, (2) what it means legally, and (3) the rights and duties of marriage (E v S).
iv) Otherwise means ‘so extremely drunk that their ability to consent without
inducement was impaired’: Sullivan v Sullivan.
, d) At the time of marriage, either party, though capable of consent, was suffering
continuously or intermittently from a mental disorder under the MHA 1983 that was to
such an extent or kind as to make them unfit for marriage
e) At the time of marriage, the respondent had a communicable STD
f) At the time of marriage, the respondent was pregnant by another
g) Either party has gained an interim GRA certificate after the marriage
h) Either party’s gender at the time of marriage was such legally by way of GRA
M(SSC)A 2013, s9(6) declares that, if any of the above were true at the time of a civil
partnership being converted to a marriage, then they work too.
Bars to relief (MCA, s13):
● A led R to believe through their conduct that they wouldn’t seek nullity order while
knowing that they could, and where it would be unfair to R to annul – s13(1)
● Three year limitation period on lack of consent, mental disorder, STD, pregnancy and
unknown gender at marriage – s13(2)
● Limitation on STD, pregnancy and gender at marriage grounds which is that they
must be unknown to the applicant – s12(3)
● Six month limitation ground on the interim GRA certificate ground – s13(2A)
If you want to apply for grounds c-f or h outside the 3 year limitation period then you have to
seek leave to apply on the basis that the circumstances were of such kind or extent as to
make the respondent unfit for marriage – s13(4)
Void Grounds
A marriage will be void (non-existent) if any of the following apply:
● Parties within prohibited degrees – s11(a)(i)
● Either party is under 18 – s11(a)(ii)
● Formalities as to formation not met (see above) – s11(a)(iii)
● Either party is already married or a civil partner – s11(b)
● Either party is in a polygamous marriage in another jurisdiction while living in England
or Wales – s11(d)
● The marriage was converted from a void civil partnership – s12A(2)
Prohibited degrees are listed at MA 1949, Sch 1, Para 1(1) and they are:
● Adoptive child or parent
● Child or parent
● Former adoptive child or parent
● Grandparent or grandchild
● Aunt or uncle, or niece or nephew
● Sibling
, MA 1949, Sch 1, Para 1(2) lays out degrees of affinity which will be treated as prohibited
unless parties are over 21 at the time of marriage and the younger party was not under 18
as a child of the relevant party at any time (1949, s1(3)). They are:
● Child of former spouse or civil partner
● Former civil partner or spouse of parent or grandparent
● Grandchild of former spouse or civil partner
Civil Partnerships
Civil partnerships are regulated by the CPA 2004, which follows the structure of the marriage
regime.
Formalities
2004 Act, Part II, Ch I.
● Both must sign the CP document in the presence of a civil partnership registrar and
two witnesses, who also sign – s2(1) and (3)
● There must be no religious service used at the signing – s2(5)
● CPs can be registered under standard, house-bound, detained or special procedures
(for those who are seriously ill) – s5(1)
The Standard Procedure
● Civil partners must register on approved premises or in a registry office with open
doors – s6(3A)-(3B)
● Notice of CP must be given to any registration authorities local to either or both
partners – s8(1)
● If either party is not a UK national then their immigration status must be stated along
with, potentially, some additional information and a photograph – s8A, 9A
● The names of the proposed civil partners must be made public during the waiting
period by the registration authority – s10
● Registration must then take place after that waiting period – s17
I’ve omitted the rest because the detail of procedure here is non-examinable.
The CPA 2004 has been amended to allow religious premises to be used for them where the
organisation managing the (e.g.,) church has permitted – s6(1), 6A.
Void Grounds
A civil partnership is void under one of four grounds – s49
