Marriage

• Pages: 18-53

CHAPTER 2

MARRIAGE

PART ONE

THE MARRIAGE CONTRACT

1. INTRODUCTION

In the oft quoted dicta of Lord Penzance in the celebrated case of Hyde v Hyde and Woodmansee,

marriage is defined as “the voluntary union for life of one man and one woman to the exclusion

of all others.”1While the permanent nature of marriage has been substantially modified in the

face of modern divorce laws, in the context of the CC jurisdictions, this traditional definition of

marriage in essence remains a valid and an accurate description. Section 1 of the Marriage Act

of Anguilla2for example defines marriage to mean “the union of a man and woman as husband

and wife”.

From a more legally technical perspective, marriage may properly be defined as a contract

or private agreement in the for m of both civil and religious unions between parties of the

opposite sex which creates, between the contracting parties, legal obligations, mutual rights and

responsibilities.

Indeed, mar riage is historically viewed as the basis for the family unit and vital to the

preservation of morals and civilization. The purpose of marriage in England, which is equally

applicable to the CC jurisdictions was considered in the leading House of Lord’s case of

Bellinger v Bellinger3where Lord Nicholls of Birkenhead described marriage as an institution or

relationship embedded in the religious and social culture of Eng land, noting historically that

the primary reasons for marriage are contained in the Church of England Book of Common

Prayer of 1662; that is as the procreation of children (the primary reason), a remedy against

sin and the avoidance of fornication, reasons, which have been repeated for several centuries

in innumerable church services.

Indeed as Robotham J.A. (Ag) noted in the SVG court of appeal case of Da Silva v Da

Silva,4the ecclesiastical courts under whose jurisdiction marriage fell until the 1753 Marriage

Act, Eng land operated on the basis of the indissolubility of marriage and the only way of

getting around it in those early times was by a petition for nullity on the grounds of pre-

contract (to marry another), consanguinity or affinity which was later extended to include

mental incapacity, impotence and which provisions were eventually provided for initially in the

MCA 1937, England and subsequent marriage acts of England, the provisions of which are

contained, with some variation, in the respective marriage and matrimonial causes legislation

of the CC jurisdictions.

Guyana, Jamaica, Trinidad and Tobago

With respect to religious marriages, in addition to Christian marriages, it is to be noted that the

1 (1866) LR 1P&D 130 at 133.

2 RSA c. M 40.

3 [2003] 2 WLR 1174; [2003] 2 All E.R. 593, [2003] AC 467, HL at para 46.

4 VC 1981 CA 1 at 11–12.

jurisdictions of Guyana, Jamaica and Trinidad and Tobago expressly provide for the statutory

recognition of Hindu and Muslim marriages5and for Orissa marriages in the case of Trinidad

and Tobago.6With respect to Barbados, Belize and The Bahamas it is to be noted that the

respective marriage act of these jurisdictions does not expressly restrict religious marriages to

Christian marriages, as remains the case in most of the OECS territories.

Parties to a marriage must comply with the contractual requirements and formalities

attendant the solemnisation of the marriage contract, whether celebrated by way of a civil or

religious ceremony, as prescribed by the marriage act of the respective CC jurisdictions.

Failure to comply with the mandatory formal requirements will render the marriage void

and in both cases, forms the basis of nullity proceedings which is examined in Chapter 5.

2. THE CONTRACTUAL REQUIREMENTS

A Introductory

In examining the requirements for entering into a valid marriage contract, it is to be noted that

some of the requirements, specifically mental capacity and prohibited degrees, overlap with

nullity of marriage proceedings provisions provided for under the matrimonial legislation of

the respective CC jurisdictions. Accordingly, mental capacity and prohibited degree restric-

tions, which form part of the marriage contract requirements, will be examined in this chapter.

B The parties must be single at the time of marriage

a. Polygamous Marriages

Marriages are required both under the common law and the relevant matrimonial legislation

of the CC jurisdictions to be monogamous, whether in respect of civil or religious marriages

in that a person by law can be mar ried to only one person at a time. The case of Hyde v Hyde

and Woodmansee7is instructive on the validity and effect of polygamous mar riage, not only in

England but in the respective CC jurisdictions. In that case, the petitioner petitioned the court

for a divorce on the ground of his wife’s adulter y. The husband who was an Englishman by

birth, joined at the age of sixteen years, a congregation of Mormons who were in London at

the time. In 1853 he got married in Salt Lake City, Utah, USA to one Ms Hawkins of the

Mormon Faith. Polygamy which was part of the Mormon faith at the time was legal accord-

ing to the laws of the State of Utah. Sometime later, the petitioner left Utah, returned to

England and renounced the Mormon faith. His wife refused to renounce her faith and

remained in Utah. In 1859, she married again in accordance with the Mor mon faith. T he

court rejected the petition on the ground that despite the extra-jurisdictional reach of the

English courts in respect of marriages entered into by English nationals, the marriage

contracted in Utah was not recognised by the matrimonial laws of England in that the English

court could not entertain a petition seeking relief from a polygamous marriage and accord-

ingly the petitioner was not entitled to an adjudication in accordance with the matrimonial

laws of England. As Lord Penzance observed the courts in England would not enforce a polyg-

Chapter 2: Marriage 19

5 Guyana –Marriage Act Cap. 45:01; Jamaica – Hindu Marriage Act 1957; Muslim Marriage Act 1957;

Trinidad and Tobago – Hindu Marriage Act Chap. 45:03; Muslim Marriage And Divorce Act Chap.45:02.

6 Orissa Marriage Act Chap.45:04

7 (1866) L.R. 1 P&D 130.

8 Ibid at 136.

amous marriage, “which is so utterly at variance with the Christian conception of marriage”8

In the Trinidad and Tobago case of Henry v Henry,9the court addressed the validity of

polygamous marriages. In that case, a wife who had married her husband pursuant to the

provisions of the since repealed and replaced Muslim Marriage and Divorce Registration

Ordinance Ch.29 No.4, applied for maintenance on the ground of her husband’s wilful neglect

to maintain her under the Separation and Maintenance Ordinance Ch. 5 No.15. The magis-

trate’s court made the order sought. The husband appealed. At the hearing, an expert witness

on Islamic law stated that under Islamic law, a man is permitted to have four wives provided

that he acts equitably between them.10 The court held, citing with approval the dicta of Lord

Penzance in Hyde v Hyde,11 that the only kind of marriage that entitles the parties to the reme-

dies, adjudication and relief of the courts is a monogamous marriage in the Christian sense of

the word and that a Muslim marriage, not being monogamous in the Christian sense of the

term, the court had no jurisdiction to make an order for maintenance.

However in the later court of appeal decision of Raffique v Raffique,12 the court held that

not only were Muslim marriages valid and legally binding, but in addition that they were on

par both as regards status and remedy-wise with all other marriages recognised by the laws of

Trinidad and Tobago.

b. Bigamy

Parties who mar ry while one or both of them are married at the time of celebration of the

marriage commit the criminal offence of bigamy.13 Accordingly both parties to the marriage

contract must be single at the time of celebration of the marriage. In Pringle v Pringle,14 a St

Lucian case on point, the applicant sought a declaratory order that her marriage to the defen-

dant was null and void on the ground that the defendant was married to another person at the

time of the celebration of marriage to the applicant. The court granted the applicant the

declaratory relief sought.

c. Promise to Marry While Married

The court’s view of the sanctity of marriage extends to instances where a promise of

marriage is made at the time when either or both parties are married to someone else. Such

promises are not enforceable on grounds of public policy. The case of Spiers v Hunt15 is instruc-

tive on this point. In that case the plaintiff brought an action for breach of promise against

the defendant who, to the knowledge of the plaintiff, was a married man who had promised

to marry the plaintiff on the death of his wife. The defendant promised to marr y the plain-

tiff so as to induce her to commit adultery with him and she in fact did so on the strength of

this promise and eventually had four extra-marital children for him. The defendant refused

to marry the plaintiff after his wife’s death. The court held that such a promise was against

public policy and could not be enforced. Phillimore J. quoting from the American case of

Noice v Brown16 stated,

20 Commonwealth Caribbean Family Law

9 TT 1959 HC 1.

10 It is to be noted that s.7(3) of the Muslim Mar riage and Divorce Act Chap.45:02 provides that “Nothing

in the Act shall authorize or validate the contracting or registration of a polygamous marriage.” See also,

Jamaica – s.6, Muslim Marriage Act 1957 which contains a similar provision.

11 (1866) LR 1P&D 130 at 133.

12 TT 1966 CA 132.

13 See Whiston v Whiston [1995] Fam.198, CA.

14 LC 1971 HC 13.

15 [1908] 1 KB 720.

16 20 Amer. Rep 388.