SESSION 4.- NCL.

MARRIAGE: COMPARATIVE STUDY

OJECTIVE

1. Analyse the elements and formalities needed to enter into a valid marriage.
2. Resolve basic case scenarios using legislation. Spanish Civil Code, Ordinary
legislation, and Case law.

HOW TO PROCEED WITH THE SESSION

a. READ THE NOTES BELOW

b. CHECK THE VIDEO (MINI LECTURE) UPLOADED IN THE CAMPUS ONLINE.
CONTENT ASYNCHRONOUS. FORDER. SESSION 4
c. COMPLETE TASK 1.
i. You may find the task in the campus online. This task shall be
part of 10% for individual participation online.
3. MATERIAL:
a. Spanish civil code. Uploaded in the CAMPUS ONLINE.
b. Matrimonial Act uk: https://www.legislation.gov.uk/ukpga/1973/18
c. Case law references.

NOTES: REQUIREMENTS AND ELEMENTS FOR A VALID MARRIAGE

a) Legal capacity to perform the act of marriage. (PERSONAL LAW)

b) Consent of the parties.

c) Form:

LEGAL CAPACITY TO MARRY. VOIDABILITY AND NULLITY OF THE ACT.

IMPEDIMENTS AND PROHIBITIONS.

As in any legal relationship in private law, valid consent is paramount.

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To give consent, the parties need legal capacity. Who has legal capacity to consent to
a marriage depends on the personal law of the parties (national law, domicile and / or
habitual residence?

- Review concept of personal law as a connecting factor: nationality, domicile

and habitual residence.

CONSENT to marry implies that there is an understanding of what a marriage is: the
obligations, powers, rights and duties arising from the relationship: personal and
patrimonial.

Consent must be given freely. The reason why the two parties wish freely to assume
these obligations and duties is irrelevant.

Hence, consent implies the understanding of the following duties:

a) Personal duties: ex. Spanish Civil Code. read the articles 42-43, from 66 to 71, Art.
855

b) Patrimonial effects. Session 5-6

CIVIL SYSTEM (SPANISH EXAMPLE)

a) Legal capacity and impediments:

Check Video

Check Art. 44 to 48, 73, 75 and 75 Spanish Civil Code

Although marriage is a legal relationship, the concept of absolute and relative nullity
or nullability due to lack of valid consent is not regulated in the same way as in other
private legal relationships.

The nature of the institution of marriages requires its own specific rules.

o E.g., Grounds for nullity are established in Art. 73 SCC. The regulation is
not clear. Nevertheless, what is evident is the law's intention to
restrict the effects of the nullity when the consent is not given in the
required form. (Art. 75 and 76) = The marriage is validated within a
year if no legal action is taken to annul it. This short period in which a

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 marriage can be a annul it is justified by the existence of unilateral
divorce (no grounds or justification). Unilateral divorce allows for the
termination of the marriage in any event and so the legal status can be
amended easily. Also, the effects of nullity and divorce are the same
except for the fact that in case of nullity the person responsible for
causing the nullity cannot benefit for the breakdown: e.g.: no right to
alimony or compensation.

A VIEW INTO ENGLISH LAW IN TERMS OF NULLITY.

Section 11 and 12 Matrimonial Act 1973.

Section 13

Note: check the news. https://www.gov.uk/government/news/blame-game-to-end-as-

divorce-bill-receives-royal-assent

As many areas of law in English law, the test would be whether a person in the same
circumstances understands the nature of a marriage contract and whether he or she is
mentally capable of understanding the duties and responsibilities that are normally
attach to marriage.

E.g:

D v D (nullity) [1979] 3 All ER 337, Dunn J ; H and W were married, but the marriage
was never consummated because W had a physical impediment to consummation and
refused to undergo surgery to correct it. Ten years later, after the couple had adopted
two children, H left to live with another woman and petitioned for nullity on the
grounds of inability or refusal to consummate. W withdrew her objections before trial,
but the judge considered whether the petition was barred by H’s acceptance of the
situation. Allowing the petition, he said approbation alone was no longer enough: the
statutory bar required both the petitioner’s conduct and injustice to the respondent. In
the instant case, there the respondent made no objection and so clearly would not
suffer injustice if the decree were granted.

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Whiston v Whiston [1995] Fam 198, CA ; A man P obtained a decree of nullity on the
grounds of R’s bigamy; granting the decree, the judge awarded R ancillary relief
amounting to Pound Sterling 20 000. The Court of Appeal affirmed the decree but
quashed the financial award. Bigamy is a crime, they said, and the court as a matter of
public policy should not entertain claims for financial relief from a knowing bigamist.

FORMALITIES

Marriage is a solemn act. E.g: read art. 49 to 65 SCC.

Wows, reading, ministers , public authorities and registration are elements that
guarantee the validity of the consent given and the marriage .

Many countries accept the effects of marriages ceremonies other than civil : Jewish,
catholic Buddhism, orthodox confession Jehovah weddings etc.