Marriage

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					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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posted:1/21/2012
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