Capacity to Marry

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In order to contract a valid marriage, the parties must possess the legal capacity to marry and must comply with certain formalities: a failure in either respect renders the marriage void. Parties have the capacity to marry if and only if they are

  • not within the prohibited degrees of relationship,
  • over 16 years old,
  • not already married, and
  • respectively male and female.

The prohibited degrees were formerly of two kinds: degrees of consanguinity where the parties were related by blood, and degrees of affinity where they were related by marriage. Either kind of relationship was a bar to marriage under ecclesiastical law (from which much of the modern law of marriage is derived): since a man and his wife "became one flesh" through the sacrament of marriage, it followed that a sister-in-law was as closely related as a natural sister. Modern civil law has largely removed the ban on marriages within degrees of affinity, though there are some restrictions (below) where the former partner through whom the parties are related by marriage is still alive.

The degrees of consanguinity are meant to discourage incest, which is seen (with little reason) as giving rise to a significantly greater risk of genetically transmitted disease and (probably rightly) as tending to disturb normal family relationships conducive to the proper upbringing of children. The prohibited degrees are defined in s.1 and Sch.1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 and other legislation. A man may not marry his mother or adoptive mother, his daughter or adopted daughter, his grandmother, his granddaughter, his sister or half-sister, his aunt by blood, or his niece by blood; similarly, a woman may not marry her father or adoptive father, her son or adopted son, her grandfather, her grandson, her brother or half-brother, her uncle by blood, or her nephew by blood.

A man may not marry his stepdaughter, his stepmother, his step-grandmother or his step-granddaughter, nor a woman marry her stepson, her stepfather, her step-grandfather or her step-granddaughter, unless both parties are over 21 and the time of the marriage and the younger was not at any time before the age of 18 "a child of the family" in relation to the older.

A man may not marry his mother-in-law or his daughter-in-law, nor a woman marry her father-in-law or her son-in-law, unless their former partners are both dead.

Under ss.10-11 of the Sexual Offences Act 1956, it is an offence for a man to have sexual intercourse with a woman whom he knows to be his grandaughter, daughter, sister (including half-sister) or mother, or for a woman over sixteen to have consensual intercourse with a man whom she knows to be her grandfather, father, brother (including half-brother) or son. Note that knowledge of the relationship is necessary for the criminal offence, but that a marriage within the prohibited degrees (which go considerably wider) is void irrespective of either party's knowledge.

Marriage Act 1949 s.2

A marriage solemnised between persons either of whom is under sixteen shall be void.

The section is clear and uncompromising: the marriage is void irrespective of either party's knowledge of his or the other's age. This can bear harshly on those born in undeveloped countries or in other circumstances such that they do not know their age with certainty. If it is shown (perhaps years later) that such a person was under sixteen at the time of his marriage, though mistakenly believing himself over that age, the marriage is void ab initio. (Before 1929 there was no minimum age, though the parties had to be capable of consummating the marriage: this ability was presumed at 14 for males and 12 for females, but could be proved by suitable evidence even below that age.)

If a person is over sixteen but under eighteen, and has not been married before, s.3(1) of the 1949 Act requires the consent to his marriage of each of his parents or other persons having parental responsibility for him. This requirement may be dispensed with by the superintendent registrar if the parent &c is unavailable or incapable of giving consent, or by order of the court, and the court has power to override even an outright refusal. A public objection by such a person when the banns are read nullifies the banns and under s.25(c), if either party is aware of it, makes void any subsequent marriage based on them.

Under s.28(1)(c), where a person is to be married under a registrar's certificate, a solemn declaration must be made that any necessary consent has been obtained; making a false declaration is a criminal offence under s.3 of the Perjury Act 1911. However, where a civil marriage has been performed apparently in accordance with the standard procedure, s.48(1)(b) of the Marriage Act 1949 provides that no evidence may be given in any proceedings touching the validity of the marriage to prove that any necessary consent was not obtained.

Where at the time of the marriage either party was already lawfully married to someone else, whether or not they knew it, the marriage is void under s.11(b) of the Matrimonial Causes Act 1973. A married person who marries again also commits the offence of bigamy under s.57 of the Offences Against the Person Act 1861; he has a good defence if his former partner has been missing for seven years during which he has had no reason to believe her still alive, but this does not validate the second marriage. To overcome this problem, s.19 of the 1973 Act allows a person to apply to the court for a decree of dissolution of marriage based on the presumed death of the spouse, where there are reasonable grounds for such a presumption.

R v Allen (1872) LR 1 CCR 367, CCR
D was charged with bigamy, having married again while his former wife was still alive. He claimed that since his second "marriage" was not legally valid, he had not in law committed the offence as defined. He was convicted and his appeal was dismissed: Parliament could not have intended to create an offence that it was logically impossible to commit, said the court, and the Act clearly referred to a person who goes through a ceremony of marriage.

R v Tolson (1889) LR 23 QBD 168, CCR
D's husband deserted her; when D made enquiries she was told that he had taken a certain ship to America, which had gone down with all hands. Six years later, believing herself a widow, D married again, and when her first husband reappeared alive and well she was charged with bigamy. Allowing her appeal, the Court said her honest and reasonable belief in circumstances making her act innocent was a good defence.

Talbot v Talbot (1967) 111 SJ 213, Ormrod J
A woman T, who dressed as a man and called herself John, went through a ceremony of marriage with W. W discovered next day that T was actually female, but continued to live with T for almost a year. Four years later, W sought and was granted a decree of nullity: the judge said this was plainly no marriage.

Harrogate BC v Simpson (1986) 2 FLR 91, CA
A lesbian D lived with another woman in a permanent relationship as "husband and wife" in a council house. When the tenant died, the Council sought to evict D, who claimed a secure tenancy under the Housing Act 1980 as "a member of the tenant's family". The Act defined a person as being a member of the tenant's family if they lived together as husband and wife, but the Court of Appeal dismissed D's appeal. Watkins LJ said it would be surprising in the extreme if public opinion were such that it would recognise a homosexual union as being akin to a state of living as husband and wife.

Fitzpatrick v Sterling Housing Association (1999) unreported, HL
Reversing the Court of Appeal, the House of Lords (Lords Slynn, Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said the legislation could not be interpreted to allow P's claim on the basis that he had been living "as the husband or wife" of the deceased - if Parliament had intended such a relationship to include same-sex partners it would surely have said so - but P could claim as "a member of the family" living with the deceased at the time of his death.

Some difficulties have arisen in relation to transsexuals: there are thought to be about 1500 male-to-female and about 300 female-to-male transsexuals in the United Kingdom, but so far as the law is concernedthey retain the legal sex into which they were born. A transexual can therefore lawfully marry a person of the sex he/she has now adopted, but not one of his/her birth sex.

Rees v United Kingdom (1986) 9 EHRR 56, ECHR
A female-to-male transsexual P, who had undergone surgery and changed his name by deed poll, complained that the English law preventing him from marrying a woman was a breach of Articles 8 and 12 of the European Convention on Human Rights, guaranteeing respect for private life and the right to marry. He also complained that his birth certificate still showed him to be female, and that he had been refused a corrected certificate, even though all other official documents (including his passport) showed him to be male. The Court rejected both claims: the birth certificate was a historical document showing the child's sex at birth, and national governments were entitled to make reasonable laws governing the exercise of the right to marry.

Cossey v United Kingdom (1990) 13 EHRR 622, Times 17/10/90, ECHR
A male-to-female transsexual P claimed that the Registrar's refusal to issue a new birth certificate showing her to be female was an infringement of her right to respect for her private life, and that the impossibility under UK law of her marrying as a woman was a violation of her right to marry. The Court, by majorities of 10-8 and 14-4 respectively, affirmed the decision in Rees and dismissed both claims: there was not yet sufficient uniformity of practice among states to establish a general rule.

B v France (1992) 16 EHRR 1, Times 31/3/92, ECHR
A male-to-female transsexual B complained of the authorities' refusal to recognise her changed sex. The Court distinguished Rees and Cossey above, and found a violation of B's right to respect for her private life. First, French law as it stood (unlike English law) allowed annotations to be added to a birth certificate, so there was no good reason for refusing such an annotation in B's case. Second, French law prohibited a person from using on official and semi-official documents such as tax returns and cheques any name other than that on the birth certificate, with the result that B had to explain repeatedly why she had a male name. And third, B's INSEE (social security) number clearly identified her as male, requiring further embarrassing explanations when (as often happened) it was quoted as an identity check on documents.

X Y & Z v United Kingdom (or Whittle v UK) (1997) 24 EHRR 143, ECHR
A female-to-male transsexual X complained that English law refused to register him as father of the children born (by artificial insemination) to his long-term female cohabitant. The European Court of Human Rights unanimously affirmed that "family life" in Art.8 extended to X's situation: factors such as the length of and mutual commitment to a relationship should be taken into account, and on the facts there were clear de facto family ties linking the applicant, his cohabitant and her child. However, there was still no uniformity of practice in relation to transsexuality, and English law was within the wide margin of appreciation to be allowed to member states.

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