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.