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Despite the prevalence of divorce in modern society, the status
of marriage in English law is still described as the ‘voluntary
union for life of one man and one woman to the exclusion of
all others’. Marriage is a contract of such a special
kind that it is more suitably dealt with here, as it changes
the status of the parties.
The law of the country in which a marriage takes place governs
its validity, so that judges are often called upon to deal with
matrimonial cases governed by foreign law.
For present purposes,
however, it will be assumed that all marriages are governed
by English law.
A marriage is void, that is, it is treated as having never existed,
if:
-the parties are within the prohibited degrees of relationship;
for example, a father cannot marry his daughter;
-either of the parties is under the age of sixteen;
-if certain formal requirements have not been complied with;
-if either of the parties at the time of the purported marriage
was already lawfully married;
-if a party to a polygamous marriage entered into outside English
and Wales was at the time of the marriage domiciled in England
or Wales.
A voidable marriage is one which is valid until such time as
it is annulled by a competent court on the petition of one of
the parties. Under the Matrimonial Causes Act 1973 grounds for
annulment are:
-if it has not been consummated owing to the incapacity of either
party;
-if it has not been consummated owing to the wilful refusal
of the respondent, that is, the party against whom the petition
is brought;
-if either party did not validly consent to it, for example,
in consequence of duress, mistake, or unsoundness of mind;
-if at the time of the marriage either party was suffering from
mental disorder within the meaning of the Mental Health Act
1959 of such a kind and to such an extent as to be unfitted
for marriage.
-if at the time of the marriage the petitioner did not know
that the respondent was suffering from venereal disease in a
communicable form;
-if at the time of the marriage the petitioner did not know
that the respondent was pregnant by some person other than him.
Except in the first two categories, proceedings must be instituted
within three years of the date of the marriage. The court will
refuse a decree, even if the conditions mentioned exist, if
the petitioner has knowingly led the respondent into a sense
of security, or if from all the circumstances it appears that
it would be unjust to grant the decree.
The most important legal consequences of a valid marriage are:
-The parties have a general duty to live with each other, unless
separated by agreement, or by a decree of judicial separation
obtained from a court, or by an order from a magistrates’
court containing a non-cohabitation clause.
-The husband has a normal duty to maintain his wife, and if
a husband is destitute a wife has a duty to maintain him if
she can.
-Either party may apply to the court for a determination of
any questions arising between them as to the title to or possession
of property.
-At common law, one of the parties, most usually the husband,
has the legal right to occupy the matrimonial home, but the
Matrimonial Homes Act 1967 allows the court to give the other
party occupational rights.
-Spouses can sue each other either in contract or in tort, but
in cases of tort the Law Reform (Husband and Wife) Act 1962
provides that the court may stay the action if it appears that
no substantial benefit would accrue to either party.
-Both husbands and wives have rights in respect of testate and
intestate succession, that is, where there is a will or no will
respectively. When there is no will, detailed rules of statute
law provide that if a husband dies a wife is adequately provided
for (subject to the limits of the husband’s estate). When
a husband leaves a will which does not adequately provide for
his wife, the widow may petition the court to have the provisions
of the will varied in her favour.
-Either party may be charged with stealing the property of the
other, but normally only with the leave of the Director of Public
Prosecutions.
Present law provides only one ground for dissolution of marriage,
commonly known as divorce, that the marriage has irretrievably
broken down. The petitioner for divorce will have to demonstrate
that one or more of the following sets of circumstances exist:
-that the respondent has committed adultery, and that on that
account the petitioner finds it intolerable to live with him
(or her);
-that the respondent had behaved in such a way that the petitioner
cannot reasonably be expected to live with him (or her).
-that the respondent has deserted the petitioner for a continuous
period of at least two years immediately preceding the presentation
of the petition;
-that the parties to the marriage have lived apart for a continuous
period of at least two years immediately preceding the presentation
of the petition and the respondent consents to a decree being
granted;
-that the parties to the marriage have lived apart for a continuous
period of at least five years.
A petition for divorce cannot normally be presented during the
first three years of marriage.
In proceedings for divorce, nullity, and judicial separation
the court has wide powers to order financial relief in favour
of the wife, and there is growing tendency to hold, wherever
possible, that property, particularly the matrimonial home,
is owned equally, whatever the strict legal position may appear
to be.
A considerable number of marriages are entered into under the
laws of a particular religion, or within a religion of a certain
denomination, as, for example, the Church of England or the
Roman Catholic Church; and marriages may be annulled according
to the laws of these bodies. The courts, however, take no notice
of such laws. Thus, for example, even although the Roman Catholic
Church does not recognise divorce, the English Courts may dissolve
a marriage to which one or both parties are Roman Catholics.
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