In this scenario we are being asked to rede Banjo and how he can convey to an terminal his matrimony to Gitta. There are several issues that are raised in relation to the scenario that we have been presented with. There appears to be some issues in relation to the cogency of his matrimony, therefore intending that it could be declared nothingness or that it could be declared rescindable, in which instance he will be able to invalidate his matrimony to Gitta. Finally we should see the construct of divorce ; these issues will now be considered in bend.
1.Banjo’s matrimony to Gitta is Void
Section 11 of the Matrimonial Causes Act 1973 provides that a matrimony can be void for one of the undermentioned grounds:
- that it is non a valid matrimony under the commissariats of the Marriage Acts 1949 to 1986 ( that is to state where –
- the parties are within the forbidden grades of relationship ;
- either party is under the age of 16 ; or
- the parties have intermarried in neglect of certain demands at the formation of matrimony ) ;
- that at the clip of the matrimony either party was already legitimately married
- that the parties are non severally male or female ;
- in the instance of a polygamous matrimony entered into outside England and Wales ; that either party was at the clip of the matrimony domiciled in England and Wales
The formal demands for come ining into a valid matrimony are contained in the Marriage Act 1949. Despite there being an copiousness of regulations to be observed, failure to detect them may hold no impact on the cogency of the matrimony. The formal component that we are concerned about in this scenario is the fact that Gitta and Banjo were married by person who was non ordained to make so, .i.e. , the priests brother.
Whilst defects such as this will render the matrimony nothingness, it will merely be where the parties “knowingly and willfully intermarry. [ 1 ] ” Thus it is impossible innocently to contract a matrimony which is nothingness for deficiency of formality. Whether a edict will be granted where a matrimony is null for deficiency of formality bends on whether the parties, holding undergone the ceremonial of matrimony, regard themselves as married. Where they do, they fall within subdivision 11 ( a ) ( two ) ; where following the ceremonial the parties do non see themselves as married, there is no matrimony to invalidate [ 2 ] . Therefore as Banjo and Gitta considered themselves to be married, it would look that despite the fact that the priest who married them was non ordained to make so, there matrimony will non be null.
B.That Banjo and Gitta’s Marriage is Rescindable
A rescindable matrimony is a valid, existing matrimony unless and until a edict of nothingness is obtained. It can merely be annulled during the life-time of both parties, and the parties to the matrimony are the lone parties who are able to request. In common with a null matrimony, on a decree being granted the court’s powers are available as if the matrimony had been terminated by divorce. Section 12 of the Matrimonial Causes Act 1973 provides that a matrimony shall be rescindable on the following evidences merely:
- that the matrimony has non been consummated owing to the incapacity of either party to consummate it ;
- that the matrimony has non been consummated owing to the willful refusal of the respondent to consummate it ;
- that either party to the matrimony did non validly consent to it, whether in effect of duress, error, unsoundness of head or otherwise ;
AThat the Marriage was non Consummated due to willful refusal/incapacity
It would look that Gitta and Banjo have non consummated the matrimony. It is suggested that the fact that Banjo is “completely mentally unable to” because of Gitta’s attitude to Viola could fall either into the class of willful refusal or incapacity. For the intents of consummation, sexual intercourse must be “ordinary and complete, and non partial and imperfect. [ 3 ] ”
Where willful refusal to consummate is being relied upon “a settled and definite determination non to consummate without merely excuse” must be established. [ 4 ] It is this demand that led to the failure of the married woman inPotter V Potter[ 5 ] to hold the matrimony annulled on the footing of her husband’s willful refusal to consummate it. After the parties married in October 1969 they attempted to consummate the matrimony on many occasions. Unfortunately, the married woman had a physical defect which made her unable to hold sexual intercourse. In August 1970 she had an operation bring arounding the defect, and the hubby once more attempted to consummate the matrimony. However he failed one time more, non due to unwillingness on his portion, but chiefly due to his wife’s emotional province. Thereafter he refused to do another effort. On the wife’s request on the land of her husband’s willful refusal to consummate, the test justice found that the failure to consummate was due to the husband’s loss of ardor, which was something that happened of course, non intentionally. Consequently the married woman failed to set up willful refusal on his portion.
Clearly, incapacity to consummate, and willful refusal to consummate, are really closely inked even though, conceptually, the two evidences are rather different. Incapacity has to be a pre bing status which existed at the day of the month of the matrimony, whereas willful refusal can non originate until after the jubilation of the matrimony.
If incapacity to consummate is to be relied on so the impotent partner must show a request in trust of his or her ain deficiency of capacity [ 6 ] . By contrast, willful refusal can merely be pleaded by the guiltless partner ; a suppliant can non trust on his or her ain willful refusal to consummate the matrimony. Therefore for the willful refusal statement to work here, Gitta would hold to plead this point and non Banjo. Banjo will merely be able to trust on incapacity.
The capacity trial is a strict trial, necessitating the suppliant to set up an unbeatable repulsion to the respondent due to a psychiatric or sexual antipathy. The trouble faced by a suppliant in fulfilling such a trial was illustrated inSingh V Singh.[ 7 ] The married woman had ne’er seen her hubby until the twenty-four hours of the civil ceremonial. Although she went through with it, she so went back to her parents’ house, and thenceforth refused to take portion in a Sikh spiritual ceremonial. She did non see the hubby once more, or travel near him. She petitioned for a edict of nothingness on two evidences, one of which was her incapacity to consummate due to her unbeatable repulsion for the hubby. Her request was dismissed. The tribunal found that it was apprehensible that the married woman did non desire to hold sexual intercourse with her hubby as she did non wish to get married him. However, the tribunal held that this was a really long manner off from holding an unbeatable repulsion to sexual intercourse. It is hence improbable that Banjo would win on this point.
BacillusThat Banjo Married Gitta under Duress
Banjo could reason that he married Gitta under duress as a consequence of his mother’s supplications to get married as she did non hold with the “sinful relationship.”
Where a individual marries under duress, or by error, or is of such unsoundness of head that he or she does non understand the nature of matrimony, in each instance there is no consent to the matrimony.
Peoples sometimes marry out of fright, or because they are capable to tremendous force per unit area from others. The issue so arises as to what grade of duress is sufficient to corrupt consent. InSzechter V Szechter[ 8 ] in make up one’s minding whether a edict should be granted, Simon P applied the undermentioned trial:
“In order for the hindrance of duress to corrupt an otherwise valid matrimony, it must, in my opinion, be proved that the will of one of the parties thereto has been overborne by a echt and moderately held fright caused by menace of immediate danger ( for which the party is non himself responsible ) , to life, limb or autonomy, so that the restraint destroys the world of consent to ordinary wedlock”
There are hence three demands that are necessary for such a request to be successful: sensible fright, artlessness of the suppliant, and danger to life, limb or autonomy. The instance jurisprudence nevertheless suggest some confusion over precisely how far cogent evidence of each of these demands is necessary to set up duress. InBuckland V Buckland[ 9 ] , Scarman J had likewise found that the fright of the suppliant must be moderately entertained. This demand was contrary to the determination inScott V Sebright[ 10 ] , where a immature adult female of some agencies was induced to get married through fright of bankruptcy, brought about by her nefarious suer. In puting aside the matrimony, Butt J commented:
“whenever from natural failing of mind or from fear – whether sensible entertained or non – either party is really in a province of mental incompetency to defy force per unit area improperly brought to bear, there is no more consent than in the instance of a individual of stronger mind and more robust class giving to a more serious danger”
The artlessness of the suppliant raises more hard inquiries. This issue arose inBuckland V Buckland.[ 11 ] The suppliant was falsely accused of scoring a immature miss in Malta. He was strongly advised by his canvasser to get married the miss or face two old ages imprisonment. In allowing a edict on the land of duress, Scarman J stated: “ [ fright ] will non corrupt consent unless it arises from some external circumstance for which the suppliant is non himself responsible.
The English governments are ill-defined on the place and what will amount to duress the Scots instance of Mahmud v Mahmud is a utile usher. In this instance the suppliant claimed that force per unit area from his household over a figure of old ages, including keeping him responsible for the shot which killed his male parent, had eventually forced him to travel through with the matrimony. In the Court of Session, Lord Prosser said it was clear that the greatest force per unit area upon him related to the shame and debasement which would afflict his female parent and household if he persisted in his refusal. The tribunal accepted that arranged matrimonies did non needfully affect an overbearing of he will and that if a kid did alter his head and consent, albeit resentfully, the matrimony was valid. But, if there was no echt alteration of head, so it held that the matrimony would be invalid. Therefore it would look that the dainty of affairs such as societal debasement, fiscal ruin, entire rejection by the household, or banishment by the community are all vastly powerful force per unit areas, good capable of wholly overbearing a person’s will. Following this determination it would look that Banjo may be able to claim that his matrimony to Gitta is rescindable because of the force per unit area that came to bear on him as a consequence of his female parent. It must be remembered nevertheless that this is Scots determination and that it will non necessary follow in English Law.
CBar to Nullity Proceedings
A general saloon applies to all nothingness requests. Section 13 ( 1 ) provides that:
“The tribunal shall not…grant a edict of nothingness on the land that a matrimony is rescindable if the respondent satisfies the tribunal –
- that the suppliant, with cognition that it was unfastened to him to hold the matrimony avoided, so conducted himself in relation to the respondent as to take the respondent moderately to believer that he would non seek to make so ; and
- that it would be unfair to the respondent to allow the edict
The load is on the respondent to raise the inquiry as to whether the saloon applies and if the respondent does non raise the affair the tribunal must allow the edict even if it thinks that the saloon would use. [ 12 ]
3.That Banjo divorces Gitta
If Banjo is non successful in turn outing that his matrimony to Gitta is either nothingness or rescindable so the concluding option that will be unfastened to him is that of divorce. Section 1 ( 2 ) of the Matrimonial Causes Act 1973 provides:
“The Court hearing a request for divorces shall non keep the matrimony to hold broken down irretrievably unless the suppliant satisfies the tribunal of one or more of the undermentioned facts, that is to state –
- that the respondent has committed criminal conversation and the suppliant finds it unbearable to populate with the respondent ;
- that the respondent has behaved in such a manner that the suppliant can non moderately be expected to populate with the respondent ;
The trial applied to whether the suppliant finds it unbearable to populate with the respondent is subjective instead than nonsubjective [ 13 ] . Consequently, once it is found that the suppliant is stating the truth about his or her feeling that is sufficient, irrespective of whether a sensible individual would happen it unbearable to populate with the respondent. [ 14 ] Banjo is improbable to hold any trouble in set uping this point. He will be issued with a decree nisi by the tribunal. The decree nisi does non end the matrimony ; it is of a purely probationary nature. It is non until the decree absolute has been granted that the matrimony eventually comes to an terminal. This can be granted six hebdomads after decree nisi on the application of the party in whose favor the decree nisi was pronounced.
4.Removing Gitta from His House
Under s30 of the Family Law Act 1996 Gitta, who may or may non hold any rights in Banjo’s belongings, will be entitled to busy the marital place and will hold a personal right to populate at that place. Section 30 subdivisions ( 3 ) – ( 5 ) give of import protection to the partner with marital place rights. Subsection ( 3 ) provinces that any payments or stamp made in regard of rent, mortgage payments made by that partner must be treated as if made by the other partner. Subsection ( 4 ) provinces that business by a partner with marital place rights is treated as business by the other partner for the intents of certain Rent Act and Housing Act commissariats which give security of term of office. Subsection ( 5 ) provinces that any payment of mortgage episodes by the partner with marital place rights may be treated by the mortgage holder as holding been made by the other partner. Furthermore it may be that Gitta has accrued an just involvement in the belongings for the period that she has resided at that place, this will intend that she will be entitled to a portion of the belongings. The Court will do the appropriate order in relation to these rights. Therefore Banjo will non be able to take Gitta from the belongings.
Family Law Act 1996
Marriage Act 1949
Marital Causes Act 1973
Buckland V Buckland [ 1967 ] 2 ALL ER 300
DE v AG ( 1845 ) 1 Rob Eccl 2779
Gereis V Yaoub [ 1997 ] 1 FLR 854
Goodrich V Goodrich [ 1971 ] ALL ER 1340
Horton v Horton [ 1947 ] 2 ALL ER 871
Morgan v Morgan [ 1959 ] 1 ALL ER 539
Potter V Potter ( 1975 ) 5 Fam Law 161
Roper V Roper [ 1972 ] 3 ALL ER 688
Scott V Sebright ( 1886 ) 12 PD 21
Singh V Singh [ 1971 ] 2 ALL ER 828
Szechter V Szechter [ 1970 ] 3 AL ER 905
Barton C, ( 2005 ) “Family Law” , Fourth Edition, Oxford University Press
Douglas G, ( 2004 ) “An Introduction to Family Law” , Second Edition, Oxford University Press
Hayes M & A ; Williams C, ( 2004 ) “Family Law: Principles Policy and Practice” , Second Edition, Butterworths