FAMILY LAW 1

Worksheet 1
Prepared by: Afiya France, Lecturer, Faculty
of Law UWI St Augustine Campus
 What does marriage represent to you?

 Do you think that unions between consenting adults

(other than marriage ) should be recognized?

 What types of unions should be recognized?

 Why should they be recognized?

 Do you think that those alternate unions should be

treated the same as marriage?

 How are they different from marriage?

 Do you feelings about unions other than marriage

change if such a relationship overlaps with a
marriage?
 At the end of this power point you should be
able to:
 Define marriage
 State the conditions and formalities necessary for a
valid marriage
 Discuss evolving notions about marriage as a
heterosexual notion
 Explain the difference between void and voidable
marriages
 Describe instances where marriages are void and
instances where they are voidable
 Describe legally recognized intimate relationships
other than marriage and the basis for recognizing
same
 Discuss the benefits of marriage as a social
institution
The voluntary union for life of 1 man and 1
woman to the exclusion of all others... per
Lord Penzance Hyde v Hyde and
Woodmansee
 Status
A class of persons to whom the law
assigns peculiar capacities

 Affects the rights and duties of third

parties

 Citizenship and immigration

 Contract- a special contract
 Capacity to contract
 Several formalities must be met
 Different grounds upon which marriage
is void/voidable
 Decree of nullity must be obtained from
Court for voidable marriage
 Cannot be discharged by agreement
between parties, only court ordered
divorce.
 Requisiteconditions:
 Must comply with the formalities of
national law
 Parties must be single
 Parties must be the minimum age
 Parties must be outside the prohibited
degrees of consanguinity and affinity
 Parties must be male and female
 Generally need to have the relevant
certificate or licence to authorise
solemnization by the officiating marriage
officer.
 For certificates, there are 2 categories:
 Certificate issued by the relevant public
officer
 Certificate issued by minister of religion
 For licences- issued by the listed Public
Officer
 Certificate issued by Public Officer
 First parties give notice to district registrar.
E.g. sec 13 TT Marriage Act:
 6 months cannot elapse bet notice and
wedding. District registrar enters the
particulars in the “Marriage Notice Book” and
it is placed in a conspicuous place for 7 days
 District registrar’s certificate e.g. sec 15 TT
Marriage Act
 District registrar issues certificate after 7
days and before 6 months if he is satisfied
that there is no lawful impediment to the
marriage
 Certificate issued by marriage officer/minister of
religion
 Notice/publication of banns. E.g. Sec 16 TT MA
 Marriage officer must enter the particulars in the
“Marriage Banns Book” publish the
banns/notification on the principle door of the
church for 2 weeks. Also required to announce
the proposed marriage audibly in the Sunday
service
 Marriage officer must send copies of banns to
Registrar General- sec 17 TT MA
 Issue of Marriage Officer’s certificate. E.g. sec 17
TT MA
 After publication of banns is complete and before
the expiration of 6 months.
 Licences- to waive the notice requirement.
 Applies to residents and non-residents.
 E.g. Sec 19 TT MA
 Residents apply for licence by appearing before
Registrar General and making solemn declaration
that there is no impediment based on
consanguinity or affinity or other lawful
hindrance
 Sec 19(A)- non-residents must be in TT for 3 days
prior to marriage
 Sec 20- special licence where minimum residency
requirement not met
 Solemnization- authorised through
certificate or licence
 Civil marriage- Registrar General
 Religious marriage- minister of religion
 When – time requirement- Sec 28, 29 TT
MA (Amended)
 6am-9pm- other than registrar, 10am-
4pm registrar
 Witnesses- 2 or more credible witnesses
 Post Solemnization
 Marriage officer or district registrar
required to register marriage in “Marriage
Register Book” e.g sec 34-35 TT MA
 Particulars of marriage entered on piece
of paper called duplicate original register.
This is signed by the parties, the
witnesses an the marriage officer.
 This is must be transmitted to the
Registrar General
 Applies to Christian and Civil marriages

 Otherreligions permit polygamous

marriages eg Islamic Law- 4 wives

 Hyde v Hyde
 Henry v Henry
 Cf Rafigue v Rafigue
 Promise to marry someone else if married
is contrary to public policy

 Spiersv Hunt
 Fender v St John Mildmay
 Originally
at Common Law, marriageable age
was the age of puberty- boys-14, girls- 12

 Childmarriage felt to be bad for the

participants and institution of marriage

 UK Age of Majority Act 1929

 The marriageable age is 16 for male and female
 Marrying under makes the marriage void, not
merely voidable
 Pugh v Pugh
PRE MISCELLANEOUS PROVISIONS (MARRIAGE) ACT 2017
 No minimum age was expressly stated in the Marriage Act which
governs Christian and Civil Unions
 Hindu- 18-males, 14-females
 Muslim- 16 males, 12-females
 Orisa- 18 males, 16 females

 The past law on marriageable age in Trinidad and Tobago

 Violated HR of women (CEDAW) and children (CRC), and
 Was in a state of dissonance
 Different ages for men and women
 At variance with the age of capacity to consent to sexual
activity (S. 18 Children’s Act 2012)
 Different ages across religions (balance protecting religious
freedom with protecting the vulnerable)

By the recently passed Act, the minimum age for marriage across
religions is 18.
 Note the need for consent when persons
are wed below the age of majority
 Eg. 24 Jamaica Marriage Act

 The effect of not having obtained consent

in Jamaica
 Sec. 24 Jamaica Marriage Act
 Consanguinity- blood relation
 based on moral and eugenic grounds
 Viewed as abhorrent
 UK Marriage Act 1949 (based on list prepared by the
Church of England in 1560)

 Parents and children upward and downward

infinitum- grandparents, grand children
 Brothers and sisters or half-brothers and
sisters
 Uncles and their nieces, aunts and their
nephews- infinitum
 Affinity- in laws
 Husband and wife are 1 so marrying sister in law
is marring sister
 Liable to create tension in the family
 Avoid marrying of step children
 UK Marriage Enabling Act 1960 (amended
to 1949 UK Act)- removed the prohibition
 TT 1960 UK Position
 BVI- original Position
 Belize- can marry brother or sister in law once
former spouse dead
 When is sex determined
 In the CC we rely on UK Common Law on this
issue
 Corbett v Corbett
 Biological sex fixed at birth
 Determined by 3 independent biological
criteria: chromosomal, gonadal and genital
 UK Common Law
 Bellinger v Bellinger
 Sec 11 Matrimonial Causes act 1973
 Court unwilling to change law- leave it to
Parliament
 Too many anomalies and uncertainties due to
the lack of objective criteria by which gender
reassignment treatment could be assessed
 Incompatible with Articles 8 & 12 ECHR
(following Goodwin v UK)
 Art 8 ECHR
 Everyone has the right to respect for his
private and family life, his home and his
correspondence.

 Art 12 ECHR
 Men and women of marriageable age have
the right to marry and to found a family,
according to the national laws governing the
exercise of this right.
 Goodwin v UK
 Concerned with UK's failure in its laws recognize
the post operative legal status of transsexuals.
 Held: Breach of Article 8 &12
 Move beyond purely biological criteria to:
 Acceptance of gender identity disorder by the medical
professions
 The provision of treatment to assimilate the individual
as closely their preferred gender
 the assumption by the transsexual of the social role of
the assigned gender
 Implications for the Caribbean:

 Trinidad and Tobago Constitution- sec 4 :

Fundamental Right to: the right of the
individual to respect for his private and
family life
 Jamaica Charter of Fundamental Rights and
Freedoms (Constitutional Amendment) Act
Sec 18- protects to rights of 1 man and 1
woman to marry
 Distinctions bet void and voidable
marriages
 If voidable the marriage is valid until
annulled, unless a decree is obtained. If
void no decree is necessary, it is void ab
initio

 Ifvoidable, only parties to the marriage

can bring proceedings. If void, any
interested parties can bring proceedings
 Sec 36 TT MA
 No notice, certificate or licence issued in
accordance with Act
 Prohibited degrees of consanguinity and
affinity
 Sec 13 (1) TTMPPA
 Prohibited degrees of consanguinity and
affinity
 Parties below the minimum age of capacity
 Parties are not male and female
 Mandatory formalities are defective
 Bigamy
 For the reasons of lack of compliance with
formalities distinguish directory and mandatory
formalities.

 Da Silva v Da Silva (time)

 Gibson v Gibson (no marriage certificate no
divorce)
 Juan v Juan, Juan and Campos (no marriage
certificate)
 Hughes v Hughes (TT)(officiate not a licensed
marriage officer)
 Thompson v Thompson (BAH)(officiate not a
licensed marriage officer)
 Sec 13 (2) TT MPPA
 Lack of consent (duress, mistake,
unsoundness of mind) (in Barbados and
Jamaica this is grounds for it being void)
 Marriage not consummated due to
incapacity
 Marriage not consummated due to wilful
refusal
 Venereal disease
 Pregnant by someone else
 Absence of consent:
 Lack of mental capacity
 Estate of Park [1953] 2 All ER 1411
 Re Hill, Ernest Clarence BB 1956 HC 2
 Small v Small BB 1990 HC 33
 Fear/Duress
 Singh v Singh [1971] P. 226 CA
 H v H [1953] 1 WLR 849
 Small v Small BB 1990 HC 33
 Mistake
 Valier v Valier [1925] 133 LT 830
 Fraud
 Perkins v Perkins BB 1984 HC
 Incapacity to consummate
 Harthan v Harthan [1948] 2 All ER 639 CA
 Physical Incapacity
 Treasure v Treasure JM 1978 SC 17

 D v A [1845] 163 ER 1039

 Baxter v Baxter [1948] AC 274, HL (overruling

Cowen v Cowen [1945] 2 All ER 197, CA)
 S v S [1962] 2 All ER 816

 Psychological Incapacity

 Singh v Singh [1971] P. 226 CA

 Willful refusal to consummate:

 Ramnath v Ramnath TT 1983 HC 59

 Kaur v Singh [1972] 1 All ER 292

 Potter v Potter [1975] 5 Fam law 161

CA
 SEC 14 TT MPPA
 Time: failure to institute nullity proceedings
within the prescribed statutory period
 Knowledge: e.g. knowledge by the petitioner
that he/she knew at the time of the marriage
that the respondent had a venereal disease or
was pregnant as the case may be
 Lack of sincerity in making application
 Approbation: conduct on the part of the
petitioner that indicates a recognition of the
validity of marriage that makes it inequitable
and contrary to public policy to apply for a
nullity: D v D (Nullity) [1979] Fam 70.
 Visiting relationship
 Non-cohabitational, otherwise similar to
husband and wife
 Neither fleeting or casual

 Cohabitational Relationship
 Co-residential relationship between a man and
woman
 Mutual commitment, permanency
 Consortium: “the sharing of a common home,
common domestic life and right to enjoy each
other’s society, comfort and assistance”
 Protection of vulnerable people

 Societal acceptance

 Historical social reality: Narine v Chune

 Equality
 Herring(44-45) reports the results of studies
asking people why they chose to marry. the
suggested reasons were divided into 3
categories:
 1. Pragmatic reasons (e.g. legal reasons)
 2. Conventional reasons (e.g. pressure from
parents, religious belief)
 3. Internal reasons (e.g. to affirm their
commitment to each other)
Most respondents referred to conventional or
internal reasons
 Ramlochan v Ramlochan:
 Prior to 1983, Patrick had 2 common law relationships and
thereafter a marriage with Cindy (applicant) and common law
union with Donna
 5 children with Cindy between 1978-1985. 2 children after the
marriage
 Legal marriage short (lasted 1 year), court added the 9 years of
CL relationship to boost her entitlement (maintenance orders
for children, 1/5 value of the house-$35,000)
Court’s criticism of the scenario:
 “Unchartered license to a form of bigamy”
 “used the common law relationships as a method to circumvent
a bigamous relationship and to defy the moral law of having a
solid family unit which is the foundation of the local community
and the wider society”
 “A bastardised form of marriage and legalizing adultery”
 “What is the nation’s conscience on this issue, moral values,
standards of decency that mark our progress”
 Hutson v Poleon
 Respondent was married to another woman while
cohabiting with the Respondent
 He argues “man” in the definition of “union
other than marriage means “single man”
 Argued that otherwise the court would be
condoning polygamy
 Court rejected the argument
 “The institution of marriage is to be preserved and
protected”
 “But realities must be recognized and provided for”
 Delzine v Stowe
 The cohabitational relationship does not
have the same status as marriage
 Dicta of Mendonca J
 At the end of this power point you should be
able to:
 Define marriage
 State the conditions and formalities necessary for a
valid marriage
 Discuss evolving notions about marriage as a
heterosexual notion
 Explain the difference between void and voidable
marriages
 Describe instances where marriages are void and
instances where they are voidable
 Describe legally recognized intimate relationships
other than marriage and the basis for recognizing
same
 Discuss the benefits of marriage as a social
institution
Maria is a 16 year old Venezuelan girl who has been living in Trinidad for the past 2
months. She came to the country with her parents and little brother, fleeing the crisis
in Venezuela. She is pregnant by her boyfriend who is still in Venezuela, but is not yet
showing. Her family has been staying in an annex of the house of their in-law, Gary,
who is 80 years old. Maria’s mother’s sister was married to Trinidadian, Gary. The
marriage ended upon her death 5 years ago. The family is in dire financial straits.
Maria’s parents have not been able to find work.
Gary once commented to Pedro, Maria’s father, that she was “nice on the eyes” and
makes even better paella than his late wife. Pedro gets excited at the prospect of a
marriage between Gary and Maria as a means of improving his family’s financial
position. He tells Maria that she needs to seduce Gary to make him fall in love with
her and marry her. When Maria looks disgusted and distressed, Pedro tells her that her
family needs a financial break and she is their only way out of poverty.
Maria, out of a sense of obligation to her family, starts dressing provocatively around
Gary and makes him his favourite Venezuelan dishes. Gary tells Maria he “could get
used to this”. Maria asks him if he wants to make it official and he says yes. Maria
tells Pedro about this conversation and Pedro arranges for a family friend, Father
Enrique, an ordained Venezuelan minister, to perform a marriage ceremony. Unknown
to the parties, Father Enrique does not have a marriage licence.
After the ceremony Gary and Maria move into his house. Maria is repulsed by Gary’s
wrinkles and tells him she has her period when he tries to hug her. Gary is secretly
relieved. The next morning, she wakes up next to Gary’s dead body. He had a heart
attack and died during the night.
Gary’s three children, who are beneficiaries under a will that Gary made months
before the marriage, are asserting that the marriage between Maria and Gary was not
valid. Maria and her family are asserting the opposite.
Advise Gary’s three children.