The Abolition of Marriage - Case Study Example

Introduction A marriage is a unification of two people who both have consented to the of marriage. The unification requires a legal, social, spiritual or religious certification. Marriage is also referred to as matrimony and it is marked by a celebration commonly known as a wedding. A person can be said to have the status of wedlock if that person have married. The marriage is recognized both legally and religiously and hence a marriage is viewed as a contract between the two spouses. A marriage can be dissolved by means of a legal divorce or a legal marriage annulment. In the two cases above, a marriage can only be dissolved through a divorce or an annulment in the basis that it is legally accepted that the spouses have met the requirements that have been put in place either by a state or a religious body. In many countries, there is an age limit to which a person can marry and underage marriage is not recognized by the law and the religion in which the spouses are currently in or answer to. However, there are many laws and legal issues that are involved in a dissolution of a marriage and this means that both parties when they intend to end a marriage must follow the various legal issues. These laws and legislations are set by a government, religion or other forms of governments. Part I: Grounds for marriage dissolution Grounds for marriage annulment Marriage annulment is the procedure of making a marriage nullified legally. The grounds for such a thing vary with various countries. Marriage annulment grounds usually can be based on the grounds that one of the spouses or both of the spouses were underage when the marriage took place. It can also be on the basis that the spouses are blood relationship or when one of the spouses is not able to be committed in a marriage setting either physically or mentally and this applies to Chers case because she is not ready to be committed to a matrimony setting with Arnold as the husband. Other grounds for a marriage annulment include religion misrepresentation, intercourse denial, intoxication on the part of one spouse and duress. This are also applicable to Chers case because there was the involvement of religious implications in the wedding plus she was also under duress especially after her brother threatened her. Cher has also went ahead and denied conjugal rights to Arnold. It can also be annulled on the grounds that one spouse concealed previous marital status. Cher also concealed to Arnold her relationship with Sy and this can help in nullifying the case. Some religions require that for one to remarry, one must nullify the existing marriage1. In the United Kingdom law a marriage can be annulled by the fact various reasons. The laws that are contained in section Sections 11 and 12 of the Matrimony Causes Act of 1973 and this laws point out the various grounds under which a marriage is void or can be voidable2. In terms of a marriage being voidable Section 12 of the Matrimony Cause Act of 1973 gives various reasons why a marriage is voidable3. The reasons include on cases where the couples have not consummated the marriage and this is clearly spelled out in Section 12 (a) on the basis that one of the party is not capable of indulging in sexual intercourse and Section 12 (b) states that if one of the spouse refuses by will not to consummate the marriage. This is very applicable to Cher case as the marriage has not be consummated and in fact they live in different bedrooms. A marriage is also voidable if one of the spouses did not consent to the marriage and this is spelled out by section 12 (c). Cher agreed to this arrangement due to the fact that she was under duress. It is also voidable if the female spouse had been impregnated by another person during the time of the marriage. This is contained in Section 12 (f)4and it is also applicable in Chers case because she had been impregnated by Sy before she married Arnold. Grounds for legal divorce A divorce can be legally acceptable under two categories which are Fault or No Fault. In a No Fault divorce, one spouse seeks divorce although there is no fault on the other partner. This means that when a spouse seeks divorce on a no fault basis, then the other partner cannot be said to have committed any wrong as far as the marriage is concerned. It is important to note that almost all countries recognizes such divorces where the divorced is based on a no fault bases. For such a divorce to be legally accepted, the spouse only needs to state that the marriage cannot continue for a reason that the country recognizes as a legally accepted reason for a divorce. In most cases the spouse just have to state that the marriage cannot work, the relationship is incompatible or that the couple have irreconcilable differences5. The United Kingdom considers a marriage for divorce if a petitioner fulfills some requirements that are well spelled out in the Matrimony Act of 1973. The law also requires that one of the spouse must have found it very difficult to live with the other and this must be proved in a court of law. This is applicable to Chers case because she find it extremely difficult to live with Arnold since she is deeply in love with Sy. Divorce can also be legal if the petitioner proves he or she had been deserted by the respondent for a period not less than two years. That the couple has been living in separation for a period not less than two years and this is legally termed as Two Years Separation and finally if the couple have lived for not less than five years apart and this is also legally referred to as Five Years separation6. Chers case study Although Chers case can be salvaged by both the divorce and marriage annulment procedures, the case would be better if it was tackled through a marriage annulment petition by Cher herself. Chers marriage can best be helped if she petitioned for a marriage annulment on the grounds that the marriage is voidable. This is because many of the aspects of the marriage can be termed as a voidable marriage because Section 12 of the Matrimony Cause Act of 1973 has stipulated some of the important cases under which a marriage can be termed as voidable. Section 12 (a) of the Act states that a marriage can be annulled if the marriage has not be consummated. According to Cher, the marriage has not been consummated because after the wedding Cher and Arnold did not share one bedroom and this is a clear evidence that the marriage has not been consummated. Although both have the capacities in contest to Section 12 (a), Section 12 (b) continues to state that if the marriage had not been consummated by the will of one of the partners, then the marriage can be said to be voidable. This means that all Cher has to do is apply on the basis that she has refused to have any sexual relation with Arnold. Cher can also petition for the annulment on the grounds that she did not fully consent to the marriage. This is catered for in the Section 12 (c) of the Matrimony Cause Act of 1973. She contend for this by the mere fact that she was in love with Sy and was forced into the marriage by her family due to religious believes. She can also contend that there was threats made to her by her relatives in she failed to marry Arnold7. The marriage can also qualify to be voided by the fact that Cher had been impregnated by Sy at the time of the marriage and this was not revealed to Arnold. Section 12 (f) states that a marriage can be voided if during the marriage one of the spouses was made pregnant by another person but not the husband. This means that Chers case can be helped by the fact that the marriage can be voided as a result of her being made pregnant by Sy8. Part II: Forced marriage (Civil Protection) Act 2007 Forced marriage (Civil Protection) Act (2007) This Act was enacted in the United Kingdom by the parliament. The legislation was put in place to help forced marriage victim or the people who under the threat of a forced marriage. It is currently a law in England, Northern Ireland and Wales but it has not been adopted in Scotland. The main piece is the Forced Marriage Order Act. This means that any person who is a victim or threatened by a forced marriage can apply in a court for the order and the court will cater for the person in whatever provisions it will find as the appropriate one to terminate or prevent the force marriage. This is intended to protect forced marriages victims. It has punitive measures not only for the person who would have been married but also to any other party that seems to encourage, aid or abet the marriage. Under this act, a forced marriage is not only the marriage in which the victim is directly threatened but also if the threat extends to family or friends of the victim. Force marriage may also occur in a scenario that the enforcer threatens to harm self if the marriage does not take place. Any person who violates the order is responsible to be charged with contempt of the court order and can result in an arrest9. Chers case would have been well catered for if it happened before from every aspect of her wedding in relation to the Act, the case qualifies as a forced marriage and the authorities would have done the necessary to protect her10. If Chers marriage had been after the the enactment of the Act she could have benefited very much from the Act. This is because the marriage has an outlook a forced marriage in any aspect that one may view it from. First of all the marriage was a forced marriage by the virtue that her parents forced her to marry her cousin while she was already in love with another man. This was based on religion issues but the fact of the matter is that on the basis of the sect religion, she was forced into a marriage that she did not want. This applies where the Act stipulates that the forced marriage can be because of a psychological coercion. This would have helped Cher because any court would have made an order to cater for her situation at that time. She was also threatened by her brother so that she could marry her cousin. This means that actual threat was made so that she could enter into the marriage arrangement with her cousin. The brother specifically used the words that she would in big trouble. This can apply as a direct threat and hence the marriage could have been nullified. All the parties that were involved in the arrangement forced her into the marriage11. Case Law: Buckland vs Buckland (1968) The judge in the Case of Buckland vs Buckland in 1968 came to the conclusion that the petitioners as a result of his fears and because his fears arose from a highly entertained circumstance which was external by nature and he was not responsible in any way had agreed to a marriage arrangement. He continued to conclude that because of these fears that had been forced upon by the petitioner, the petitioner was entitled to declare the marriage null and void12. This case would also have applied very well in Chers case because due to external forces she was forced to enter into a marriage arrangement that she did not fully accept. This case law would be applied in her case and hence she has the right to declare the marriage ceremony null and void. Conclusion In the case study of Chers marriage to Arnold, Chers happiness can only be saved by a marriage annulment on the grounds that the marriage is voidable. This is because almost all aspects of the marriage points to the evidence that the marriage did not have the consent of Cher and that the marriage. Section 12 of the Matrimony Cause Act of 1973 states various reasons why a marriage can be voided and the marriage between Cher and Arnold has some of the major reasons that the marriage can be annulled. One of the fact is that Cher did not consent to the marriage and also have not consummated the marriage. This is because on Chers part she willfully does not want to consummate the marriage. Cher also had been impregnated by another man during the time of the marriage. According to the Civil Protect (Force Marriage) Act of 2007, Cher would have been helped very much if the marriage was held after the Act was signed into law by parliament. This is because the marriage has an outlook of forced marriage into any aspects one can look at. There was also the threats that she was subjected to by her brother when he was enforcing her to marry her cousin Arnold. This shows that the marriage could have been nullified by a court of law and she would have been given the protection that could have best suited her as to the view of the court. This would have ensured that she was protected from the marriage between her and Arnold13. Bibliography Cretney’s Principles of family law, 8th edition 2008 Gallagher, Maggie. (1996) "The Abolition of Marriage." Regnery Publishing; 102 O’Brien, R. C. (2007): Family Law in Perspective. 2nd ed. New York: Foundation Press; 301 Mary Welstead & Susan Edwards family law 1st edition, oxford uni press 2006 Mika, O. (2008) Blackstone’s Statues on family law 2008-2009 by 17th edition 2008 Morowitz, Harold J.(1975) "Hiding in the Hammond Report." Hospital Practice August 1975; 39. Read More