August 2012 articles archive:

Are you breaking the law?

We are often told that the law needs to be certain – that the law is black and white. This is because we need to know whether our actions are legal or not.

We are often told that the law needs to be certain – that the law is black and white. This is because we need to know whether our actions are legal or not. Most of us are law abiding citizens and will comply with legal requirements and probably presume that if we do not that we are breaking the law and that we may be held accountable in some way. In some situations, if the behaviour is completely unacceptable, criminal liability may arise.

In contract law we are told that certain conditions need to be met if a legally binding agreement is to be upheld by the courts. This analytical approach is traditionally based upon the principles of offer and acceptance and the concept has been become very much a part of contract law. The consequence being that if these elements or characteristics of a contract are not found to have existed no valid contract can be deemed to have been created. There is nothing to enforce and there can be no breach as there is no contract. Does it always follow that this will be the case? If we appear to fail to meet a legal requirement will this always mean that there will be a consequence?

Interestingly the question arose in an unusual context recently in the case of MA v JA (Attorney General intervening) (2012). In this case a ceremony of marriage, conducted in England did not comply with the requirements of the Marriage Act 1949. This was because the parties had failed to give notice to the registrar. As a result the marriage had proceeded despite the absence of a certificate.

In fact the marriage had been held at a mosque in 2002, where a lot of marriages had been conducted and which was registered for the solemnisation of marriages under Section 41 of the 1949 Act on 22nd January 1992.  Apparently the Petitioner knew nothing about the need for notice or a certificate or any of the formal requirements of the 1949 Act and made no enquiries beyond his discussion with the Chairman of the Mosque. The ceremony had been conducted by the Imam.

One would think that the answer must be fairly clear as Section 49 of the Marriage Act 1949 provides: ‘If any persons knowingly and wilfully intermarry under the provisions of this part of the Act - (a) without having been given notice of marriage to the superintendent registrar; (b) without a certificate of marriage having been duly issued…the marriage shall be void.’

Moylan J in the Family Division took the view that what took place had been sufficiently within the 1949 Act for the marriage to be capable of being a valid marriage under English Law and granted a declaration that the marriage was a valid marriage from the start. The application for the declaration had been opposed by the Attorney General on the basis that the ceremony had no effect under English Law and resulted in a ‘non-marriage'.

Moylan J gave a fully considered judgement in which including a reference to the approach taken by Ormrod J in Collett v Collett (1968) when Ormrod J stated:

"The control of the formation of marriage in this country has a long statutory history; much of it intended to prevent clandestine marriages.  The general tendency has been to preserve marriages where the ceremonial aspects were in order rather than to invalidate them for failure to comply with the statutory provisions leading up to the ceremony."

Moylan J was satisfied that the parties had not acted deliberately to avoid the requirements of the Marriage Act 1949.




Recent Posts

The latest posts from the blog archives.

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In Robinson the Supreme Court laid to rest the proposition that there is a Caparo test which applies to all claims in the modern law of negligence.

Statutory interpretation - penal legislation is construed strictly

The Supreme Court reminded everyone per Lord Reed and Lord Hughes that 'Penal legislation is construed strictly, particularly where the penalty involves deprivation of liberty'.

Court of appeal gives judgment acknowledging unmarried woman's rights

The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

European union law – in the case of conflict between national law and european law

Walker (Appellant) v Innospec Limited and others (Respondents) [2017] UKSC 47 On appeal from [2015] EWCA Civ 1000

Vicarious liability is alive and well

This decision extends the doctrine of vicarious liability in respect of foster carers for the fist time and it represents another example of the potential for the expansion of this form of liability.

Supreme court busy - make sure you are geared up for your course

The Supreme Court has been especially busy lately.

Gina miller v secretary of state for exiting the eu 2016 as an example of the importance of judicial independence

Law students are now required to take note of how the independence and work of the judiciary has been reformed

Policing and crime bill and provisions for bail after arrest but before charge

The clear intention is that decisions on pre-charge bail should come under scrutiny.