Marriage & Divorce Contents • Definition • Requirements for a valid marriage • Bars to marriage • Void marriage • Voidable marriage • Divorce in the past and today • Financial and childcare arrangements Marriage in the past - historically the English Common Law required nothing for the celebration of a marriage beyond the declared agreement of the parties Common-law marriage • A marriage that takes legal effect without licence or ceremony; “marriage by habit and repute” • traces its roots to the English ecclesiastical courts, which until 1753 recognized a kind of informal marriage known as sponsalia per verba de praesenti, which was entered into without ceremony • Authorized in 11 states in the US as the full equivalent of a ceremonial marriage • Also: consensual marriage, informal marriage The formalities today • A marriage must be celebrated in the presence of a clergyman of the Church of England, or (since 1836) of a Registrar of Marriages, or (since 1898) of an „authorized person‟ • Two persons must be present as witnesses Definitions • a voluntary union for life of one man and one woman to the exclusion of all others - a contract based upon a voluntary private agreement by a man and a woman to become husband and wife - act or state of being joined as husband and wife Requirements for a valid marriage • Monogamous (not necessarily one man and one woman – same-sex marriage made legal in 2002 in the Netherlands) • For life (the intention of both parties must be a union for life, regardless of the availability of divorce) • Voluntary (as any other contract, it must be entered into voluntarily, without coercion) Conditions for a valid marriage • 1) parties legally capable of contracting to marry • 2) mutual consent or agreement • 3) an actual contract in the form prescribed by law Bars to marriage • Youth (the age of consent; now 18, before 1969 it was 21) • Consanguinity (close blood relation) Void marriage • If either party is under sixteen • If parties are related by blood: • 1. Ascendants and descendants, e.g. parent and child, grandparent and grandchild • 2.Brother and sister, uncle and niece, nephew and aunt • 3. Persons who, by reason of the previous marriage of one of them, are related – changed by the Marriage Act of 1986 Marriage Act, 1986 • A man may marry his stepmother, or a woman her stepfather, provided that the younger person is aged at least 21 and has not at any time before reaching the age of 18 lived as a child of the family of the older person • Marriage between in-laws also permitted Bigamy • A marriage celebrated between two persons, one of whom is at the time validly married, is void • The person who knowingly enters into such a marriage is guilty of bigamy Other types of void marriages • Marriages between parties who are not male and female • A polygamous marriage entered into outside England and Wales, if either party was at the time domiciled in England and Wales Voidable marriage • Valid initially, but may be set aside because of: • Lack of due consent • Duress (coercion) • Mistake as to identity • Mental incapacity (unsound mind) Marriage as a contract • Marriage is a contract, but it is not like other contracts because: • The parties cannot agree on the rules governing marriage • The parties cannot agree what is to be regarded as a breach of contract (because it must be for life), nor what compensation should be paid in case of such a breach (a different type of contract regulates this: prenuptial agreement) Vocabulary • Ecclesiastical courts – crkveni sudovi • Registrar – matičar • Coercion (duress) – prisila, prinuda • Consent – pristanak, privola • Bars to marriage – zapreke braku • Consanguinity – krvno srodstvo • Dissolution of marriage – razvrgnuće braka Vocabulary II • Valid marriage – važeći brak • Void marriage – ništavan brak • Voidable marriage – poništiv (pobojan) brak • Breach of contract – raskid ugovora • Prenuptial agreement – predbračni ugovor Comprehension check • Complete the following sentences: • A mariage entered into under duress is ________________. • Bars to marriage are youth and ________________. • A valid English marriage must be monogamous, for life and _____________. Divorce Divorce • The legal termination of marriage • Dissolution of marriage • Under English law, the only basis for divorce is the irretrievable breakdown of marriage • The official request to a court to end a marriage is called divorce petition Fault divorce • Until 1969, most states required grounds for divorce – the guilty party and the innocent party • In England, divorce would be granted only to the innocent party (petitioner) who could prove that the other party (respondent) committed a matrimonial offence • Largely based on the church (ecclesiastical) law Matrimonial offences • Adultery • Intolerable Cruelty • Desertion “Uncontested” divorce • Both sides deliberately agreed that the wrongful conduct would be claimed – even untruthfully • Perjury – lying under oath No-fault divorce • Available since 1969 • Pioneered in the US by the State of California with the passage of the Family Law Act of 1969 • The Act signed by Governor R. Reagan on September 4, 1969 and became valid on January 1, 1970 • Abolished the old common law for divorce Grounds for no-fault divorce • Less specific reasons, such as incompatibility or irreconcilable differences • The court decides how to divide communal property and who gets custody of the children • If one of the spouses is financially dependent on the other, the court will usually order the other one to pay alimony (AmE) or maintenance (BrE) Elements 1. Dissolving the marriage – the formal legal process by which the marriage is ended 2. Financial arrangements – the process of dividing up the marital assets and agreeing on maintenance 3. Childcare arrangements – the process of deciding who the children of the marriage will live with (residency) and how much contact the non-resident parent will have Dissolving the marriage • Petition for divorce • Acknowledgement of service • Obtain Decree Nisi • Obtain Decree Absolute (after six weeks) Financial arrangements • Apply for Ancillary Relief • Financial disclosure • Negotiation • Obtain financial court order Childcare arrangements • Agreement • Application for residence and/or contact • Investigation • Residency court order Divorce today • In the UK, 40 % of marriages end in divorce • In the USA almost 50 % • Croatia – current statistics show that every fifth marriages ends in divorce Vocabulary • Dissolution of marriage – razvrgnuće braka • To file a divorce petition – podnijeti zahtjev za razvod braka • Petitioner – tužitelj u brakorazvodnoj parnici • Decree of divorce – rješenje o rastavi braka • No fault divorce, uncontested divorce – sporazumni razvod braka • Decree Nisi – privremeno rješenje o razvodu braka • Decree Absolute – pravomoćna presuda o razvodu braka • Ancillary relief – financijska pomoć kod razvoda • Financial disclosure – iznošenje podataka o financijama Vocabulary exercise Fill in the blanks with the most appropriate word(s) from the list below: grounds, separation, irretrievably, cohabitation, circumstances, respondent, family, relief An action for _________________ or divorce begins by filing a signed and sworn statement with the court indicating that sufficient grounds for ___________ from marriage exist. After the complaint is filed, it is served on the _______________, who has time to file an answer to the complaint. The _____________ court can issue a decree for divorce under a number of _________________. The court will grant a divorce when the marriage is _____________ broken. The parties can also get a divorce when there is no reasonable likelihood that _________________ will resume and the court is satisfied it would not be harsh or contrary to the public interest to grant the divorce on the ____________ requested. Answer key • An action for SEPARATION or divorce begins by filing a signed and sworn statement with the court indicating that sufficient grounds for RELIEF from marriage exist. After the complaint is filed, it is served on the RESPONDENT, who has time to file an answer to the complaint. The FAMILY court can issue a decree for divorce under a number of CIRCUMSTANCES. The court will grant a divorce when the marriage is IRRETRIEVABLY broken. The parties can also get a divorce when there is no reasonable likelihood that COHABITATION will resume and the court is satisfied it would not be harsh or contrary to the public interest to grant the divorce on the GROUNDS requested.
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