The Law on Voidable Marriages is Out Dated - Coursework Example

Family Law Coursework Paper Human beings since the time became civilized need laws for protection and keeping order and justice in the societies they live. There are laws which were made for keeping order and peace in the community while some laws are based on religious beliefs of these societies. Marriage is an important factor in the lives of people and there are certain religious factors that need to be considered while the law making authorities are defining the procedures. There are marriage laws and divorce laws and everyone needs to understand and follow accordingly if they need to keep their lives within the jurisdictions and legal procedures. The question selected for discussion in this paper is about “The law on voidable marriages is out-dated and should be radically reformed or abolished.” Before beginning the discussion a brief understanding of the term voidable is required so as to better relate it with any references or examples given. As a direct meaning of the word it is something which is not completely void but can be avoided. The term voidable is generally used in contracts as a term particularly used to explain the agreement that appears to be “valid and binding unless avoided or declared void”. This can be done by someone already part of the agreement, legally exercising “a power to avoid the contractual obligations”. This may be further clarified that the “voidable marriage” is a marriage that is valid “when entered into and remains completely valid until a party obtains a court order nullifying the relationship”. Concerned people might consent to a “voidable marriage” if there is some changes or extractions of the” impediment preventing a lawful marriage, thus making the union valid”. If someone lives in the same house supposedly as a married couple after the changes are made in the obstructions does mean that it has been ratifies. An attack on the “voidable marriage” can only be done with a straight action taken against either one of the parties in that relationship and this means that it cannot be challenged or questioned in the case of the death of either one of the spouse’s death. However, it is different from what a void marriage means in which case there is no validity that a relation in marriage exists at all. An example of a void marriage is that cousins cannot be married or a person not yet legally an adult can enter a marriage. Keeping in view the idea of a void marriage there are some rules which contradict the former by stating that the marriage if the person is over seven years of age but under the required age of statutory that can give consent.A marriage like this is probably under attack at a time of annulment or it may be changed or altered once the party that is under-age reaches the right legal age. Similarly with relevance to marriages that involve a party that is incompetent may either be declared void or on the other hand it’s simply voidable. Thus a marriage that is legally voidable may be including or involving a party that is incompetent clarifies if during the time period or after she or he gains know-how. Categorically speaking any marriage is voidable if it is induced or procured through some kind of fraud. Another term that may be effective here is the “voluntary cohabitation” which follows the disclosure of all relevant details that are behind the marriage. As stated in the topic of “Voidable” that was accessed from the website; www. law.jrank.org, states that “A marriage made without the voluntary consent of one of the parties is generally considered voidable”. It further explains this point by stating that if someone was under the influence of drugs or alcohol at the time they were getting married leads to the incapability to understand what the status of marriage means, thus lacks appropriate ability to accept the status. Thus this kind of marriage is validly declared as voidable. The end of a marriage that is voidable To end the voidable marriage the best way is “Annulment or Divorce” and can be filed in the court by either of the two parties. Technically it is an invalid marriage however it does have the option to be converted to be valid due to any act of the two parties. In case there is a failure to call off the marriage eve after the information of the holdup to the matrimony might lead one of the two to drop their rights for dissolution of the marriage. We now take a look at some of the examples about the voidable marriages. 1. A marriage prior to the of consent: “Tamlyn, 17, and Akira, 18, were married in Las Vegas after Tamlyn lied about her age. This marriage is voidable because she is underage. When her parents find out, they bring her home and have the marriage annulled. If Tamlyn's parents later consented to the marriage, or if the couple had continued to live together until she reached 18, the marriage would have been valid”. 2. A forced marriage or fraud: “Harold and Margaret are both in their sixties. Margaret has been financially secure since the death of her first husband, so she has Harold sign a premarital agreement before they marry. After the wedding, Harold realizes that Margaret isn't going to support him in the style he expected. Because he admits to her that he was only looking for a meal ticket, Margaret is able to obtain an annulment based on fraud”. 3. A Marriage with someone not in his complete senses that is some cases comprises the need of having the ability of comprehension under the effects of alcohol or drugs. 4. Such a marriage where either party is incapable of consummating it. 5. A matrimonial relationship entered as part of a dare or as a joke is considered to be voidable. 6. Hiding the fact that either of the two has an abhorrent ailment. We now address the part where it was asked whether this law of voidable marriages should be abolished or reformed to a great extent. A article found on the following site ; http://www.coursework.info/University/Law/Family_Law/The_distinctions_between_void_and_voidab_L88495.html#ixzz3Pxbi2PWm with the title “The distinctions between void and voidable marriages serve no purpose in modern family law and should be abolished” shares the view on this issue. The article starts with developing the understanding of the difference between void and voidable marriages in order to discuss it. For this purpose it is imperative that the fact that these marriages are not the “sole types” is understood. To start with there are valid marriages that include the proper ceremony followed with all the required procedures and without any defects. An interesting point found in this article was “The fourth, and often ignored category is that of non-marriage; a ceremony that is so far removed from a valid marriage, it is not a marriage at all”. To further address this problem it’s certain that a discussion is required on the basis for “void and voidable marriages” their differences. Looking at the laws stated in the “Marriage Act 1949 about ‘what is a valid marriage?’, and in the Matrimonial Causes Act 1973, the law tells us ‘how a marriage is declared void or voidable?’ we can understand the following points with more clarity. The information given below has been taken from the “OPSI” that stand for “Office of Public Sector Information” in the United Kingdom. The category of void or voidable marriages both fall under the “Nullity” of a marriage. As the paper is generally concerned with only the reasons of factors or a voidable marriage we will not discuss here under the void marriage. The complete extract is taken from the above stated site and has not been changed as they are part of the legal website of government of UK. “Grounds on which a marriage is voidable” “A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say— (a) That the marriage has not been consummated owing to the incapacity of either party to consummate it; (b) That the marriage has not been consummated owing to the willful refusal of the respondent to consummate it; (c) That either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise; (d) That at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the F Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage; (e) That at the time of the marriage the respondent was suffering from venereal disease in a communicable form; (f) That at the time of the marriage the respondent was pregnant by some person other than the petitioner”. Analyzing the basis on which a marriage is considered voidable suggest that it is still valuable for modern societies. Firstly as the first point states that if one of the person is incapable to consume marriage its voidable .There are many situations where the marriage cannot be consumed such as in physical impotence of a party or some people are unable to consummate marriage because of emotional reason such as the trauma of a sexual assault in their past. They hope that a marriage will correct the difficulty but sometimes, very sadly, it does not. Here, as the physical or emotional impotency of one of the party affects the emotional and physical needs of the other party, the family law of voidable marriage ensures well-being of the healthy party. Similarly, if one of the parties has venereal or contagious diseases such as HIV /Aids, the health of the other party is at risk therefore the family law of voidable marriage law helps protect the party who is exposed to such risk. The family law on voidable marriage also proves its relevance for teenage marriages which are also common in our societies. At such an early age parent do not allow their kids to marry thus teenage kids tend to either lie about their age to get marriage license or leave for far off destinations where they can have legal cover for their early marriage. Most teens are still not educated or mature enough or have enough financial responsibilities. The problem of adequate financial support is obvious to shoulder a family or parenthood. They do not have the privilege for even the most basic of services such as renting house or purchasing car. The other challenges that teenagers face after marriage may include that they do not get admissions to some public school systems easily or they can miss the educational opportunities and thus financial independence. Also they may not be able to buy insurance for themselves, especially if they do not have parent’s financial support. The insurance companies mostly do not allow married teens with separate households to be covered by their parents’ insurance, regardless of their ages.Apart from financial challenges, with family responsibilities teenage married couples miss the critical time for learning and personal development. Another problem which is faced by those who enter into an early marriage is the problem of personal maturity Also the teenage kids grow apart as they grow older: ideals and goals change as they pass the teenage years, to such an extent that they may easily find themselves married for life to a person with whom they will ultimately have very little in common. The extremely high rate of divorce among those who marry during teenage should act as a large caution sign to those who view it as another component of personal choice and freedom. Thus teenage marriages must be discouraged for the physical and mental well-being of the individuals. Therefore we can conclude that the family law of voidable marriage is actually beneficial for teenagers as well as parents. This law allows parents to seek for annulment or if the couple continues to live together until they reach age of 18, the marriage could remain valid. Further family law on voidable marriage is valuable in cases of Forced marriages. Forced marriages are still common in South Asian, East Asian, Arab and African communities. These are marriages whereby one or both of the parties is married without his or her consent by their parents or guardians. In most but not all forced marriages, it is the female rather than the male who is the involuntary spouse. Forced marriages are generally made because of wishes of the parents, family pride and social obligation. Forced marriages are very common within the migrant communities based in developed countries. They are aimed at providing citizenship to a member of the family currently residing in their native country. The members of the migrants feel a sense of duty towards their native folks which instigates them to force their children into forced marriage. The mental and physical health of the perspective spouse thus is not considered by the instigator of forced marriage. Thus there are chances that the incoming person from the native land could have mental or physical disabilities. This practice is considered form of human rights abuse, since it violates the principle of the freedom and autonomy of individuals .The migrant conservative community make up a large part of First world population especially in United States of America. Therefore, individuals especially females who are forced into marriage without their consent originating from these migrant communities must be protected by the law. Thus in such cases, family law of voidable marriage law proves to be useful. There are also instances where inadvertent situations force one of the individuals involved in marriage to not remain in the marriage contract. Example of such situations may include female being unaware of pregnancy and is not marrying the father of unborn child. Now in this case, we see that if marriage does take place, legal complications may arise regarding the unborn child and his custody issues may .Thus family law for voidable marriage proves to be useful for such cases. Marriage is a social and religious norm which is practiced in almost all religions and communities. It has been source of religious and societal regulation since early ages and has been protected by strongly felt social norms However as the norms are becoming less and less important and people are acting according to individual will, there must be effective laws to protect the weak and voiceless. The law for voidable marriage is one such law that protects individual who are affected by the negative aspects of marriage. Marriage, like any other practice may have positive and negative repercussions. After the points discussed in the previous pages it can be decided that the law for voidable marriages should not be abolished completely. So far it has been working out in order to remove conflicts and confusions in the matrimonial cases. It can be concluded that benefits of family law on voidable marriage are indeed greater than its negative outcomes. There is a probability that the family law on voidable marriage may be misused such as spouses seeking annulment for the wrong reasons. It must not be used to seek to freedom from the bounds of wedlock. However, if it is removed completely then the people who may be a victim to fraud or any other illegal trap in marriage cannot voice their issues and concerns. References Voidable http://law.jrank.org/pages/11153/Voidable.html#ixzz3Pxj07tPI Ending a Voidable Marriage By Johnette Duff, Attorney at Law Posted On: April 27, 2009 by Wood, Atter & Wolf, P.A. Florida Annulment: Voidable Marriages -- Florida Divorce Law http://www.jacksonvilledivorcelawyerblog.com/2009/04/florida_annulment_voidable_marriages_--_florida_divorce_law.html The distinctions between void and voidable marriages serve no purpose in modern family law and should be abolished. Read more: http://www.coursework.info/University/Law/Family_Law/The_distinctions_between_void_and_voidab_L88495.html#ixzz3Pxbi2PWm Read More