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Denning Law Journal 2014 Vol 26 pp 62 - 97
HUMAN RIGHTS, “ARRANGED” MARRIAGES
AND FAMILY LAW: SHOULD CULTURE
OVERRIDE OR INFORM FRAUD AND DURESS?
Jocelynne A Scutt^ ∗
ABSTRACT
Family law in Australia and Fiji provides that marriages can be void on various grounds, including duress and fraud. Despite some differences, United Kingdom (UK) law says marriages can be void or voidable on similar grounds. Courts in each jurisdiction have granted annulment in cases of forced marriage where duress “threatens life and limb”. Courts now say lesser force or threats, including pressure to comply with religious or traditional duty, can nullify marriage. Yet courts continue to require high level force such as passport confiscation, physical abuse, threats of eviction from the family home, and economic harm. This, as with allegations of fraud which receive short shrift, results from returning to common law authorities decided before migration resulted in significant demographic changes, particularly regarding culture and religion. UK authority draws a distinction between “forced” and “arranged” marriages, saying nullity is granted rightly in cases of the former, yet because “culture” “sanctifies” the latter, refusing nullity is right. Yet is this distinction valid? Should such marriages be recognised by Australian, Fijian and UK courts as contracted with full and free consent of the parties? An exploration of contemporary cases against the common law background to fraud and duress as nullity grounds indicates that allowing culture to be the measure denies women’s (and sometimes men’s) entitlement to contract marriage with full and free consent according to international human rights law.
INTRODUCTION
In April 2013, Pakistan’s Sindh Province passed the Child Marriage Restraint Act criminalising marriages of girls under 18 years of age.^1 Earlier, in March 2011, the German Bundestag approved a law imposing
∗ (^) The Hon Dr Jocelynne A Scutt, Barrister and Human Rights Lawyer, Visiting
Professor and Senior Fellow, the University of Buckingham. (^1) See further below.
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five years imprisonment upon any person convicted of forcing another into marriage.^2 Germany, along with Austria, the Netherlands and prospectively Belgium, also imposed a minimum age for marriage visas. So did the UK. Later (in 2014) forcing someone into marriage in England and Wales or forcing a British national into marriage outside the UK became unlawful, carrying a seven-year maximum penalty.^3 However, the UK visa requirement came under challenge. In October 2011, the Supreme Court in R (on the application of Quila and another) (FC)(Respondents) v Secretary of State for the Home Department (Appellant)^4 struck down paragraph 277 of the Immigration Rules banning entry for settlement of foreign spouses or civil partners unless both were 21 years or above.
ENGLAND & WALES CASES
These criminal and civil law measures were intended to combat forced marriage. Generally, the problem is understood as having become acute in Western countries with increased migration from countries where culture, religion and tradition are perceived to play a major role in selection of marriage partners for reasons other than “love match” or “acceptable” arrangement.^5 With forced marriage, choice is not open to the parties. In Quila^6 the Secretary of State advanced the sole purpose of the Rule as being to deter or prevent forced marriage. The Rule provided that no partner or prospective partner under 21 years of age would be issued with a marriage visa, namely entry clearance, leave to enter, leave to remain or variation of leave on marriage grounds. The Supreme Court considered a
(^2) ‘Penalties for Forced Marriages: Berlin Passes New Integration Measure’,
SpiegelOnline (18 March 2011), <http://www.spiegel.de/international/germany/penalties-for-forced-marriage- berlin-passes-new-integration-measures-a-7517409.html> accessed 21 March
(^3) Anti-social Behaviour, Crime and Policing Act 2014 (UK), ss 121 and 122. (^4) [2011] UKSC 45. (^5) Quila (ibid (n 4)) [9] (Lord Wilson) puts the ‘prevalence of forced marriage
within sections of’ the UK community as coming ‘increasingly to the attention of a shocked public’ over the preceding 12 years ‘as victims of it, or witnesses to it, have at least and less infrequently summoned the courage to report it’. The 1999 date is referable to the Home Office having established in that year a Forced Marriage Working Group. “Arranged” marriages are seen as acceptable, a distinction being drawn between the latter and forced marriages. See further this article. (^6) [2011] UKSC 45.
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FORCED AND ARRANGED MARRIAGES
The Family Law Act 1996 (EW) addresses this at point of marriage: s 63Q Shortly after issuing Rule 8, the Secretary of State published a guide to forced marriage, identifying “some of the key motives”, said to include:
- Controlling unwanted sexuality (including perceive promiscuity, or being lesbian, gay, bisexual or transgender) – particular the behaviour and sexuality of women.
- Controlling unwanted behaviour, for example, alcohol and drug use, wearing make-up or behaving in a “westernised manner”.
- Preventing “unsuitable” relationships, for example, outside the ethnic, cultural, religious or caste group.
- Protecting “family honour” or “izzat”.
- Responding to peer group or family pressure.
- Attempting to strengthen family links.
- Achieving financial gain.
- Ensuring land, property and wealth remain within the family.
- Protecting perceived cultural ideals.
- Protecting perceived religious ideals which are misguided.
- Ensuring care for a child or vulnerable adult with special needs when parents or existing carers are unable to fulfil that role.
- Assisting claims for UK residence and citizenship.
- Long-standing family commitments.^14
In England and Wales, a distinction is drawn between forced and arranged marriages, the latter being acceptable, the former not.^15 Acceptability is spelled out by Wilson LJ in Quila as where one party
(^14) Ibid [76]. (^15) See Forced Marriage Unit (FMU), Forced Marriage: A Wrong Not a Right –
Summary of Responses to the Consultation on the Criminalisation of Forced Marriage (Foreign & Commonwealth Office, London, UK); Home Office, A Choice By Right – The Report of the Working Group on Forced Marriage (London, 2000); Centre LGS, Response to the Home Office Consultation Document – ‘Forced Marriage: A Wrong Not A Right’ , ANRC Research Centre for Law, Gender and Sexuality, London, UK, November 2005; UK Parliament, ‘Forced Marriage (Civil Protection) Bill [HL]’, Hansard – House of Lords , 26 January 2007, pp 1-5, <http://www.publications.parliament.uk/pa/pabills/200607/forced_marriage_civil _protection.htm> accessed 14 April 2014.
HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND FAMILY LAW
enters “not only without her or his free and full consent but also as a result of force including coercion by threats or by other psychological means”, citing ss 63A (4) and (6) Family Law Act 1996, inserted by s 1 of the Forced Marriage (Civil Protection) Act 2007.^16 Further, a forced marriage is “entirely different” from an arranged marriage where “in conformity with their cultural expectations, two persons consent to marry pursuant to an arrangement negotiated between their respective families”.^17 Next, referring to the Universal Declaration of Human Rights (UDHR) 1948: Article 16(2), International Covenant on Civil and Political Rights (ICCPR) 1966, Article 23(3) and ECHR, Article 12, Wilson LJ said forced marriage is a “gross and abhorrent violation” of rights. 18 Apart from the ECHR, these, along with other international instruments, refer to free consent to marry. The UDHR affirms “free and full consent of the intending spouses”,^19 which the ICCPR reiterates (Article 23), adding the “right of men and women of marriageable age to marry”.^20 Albeit not referred to, Article 16(1)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) insists on a “basis of equality of men and women”, with free choice of spouse and “full and free consent”.^21 The CEDAW Committee’s General Recommendation 21 specifically affirms women’s rights of spousal choice and entering marriage freely as “central to her life and her dignity and equality as a human being”. 22 Meanwhile, the International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 10 says marriage “must be entered into with the free consent of the intending spouses …”^23 Curiously, the ECHR refers (Article 12) to the UDHR, yet omits reference to consent or choice, potentially sanctioning state laws countenancing marriage without free consent: “Men and women of
(^16) Quila (ibid (n 4)) [9]. (^17) Ibid. (^18) Ibid. (^19) UDHR 1948, http://www.un.org/en/documents/udhr/ accessed 21 April
(^20) ICCPR 1966 http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
accessed 21 April 2014. (^21) CEDAW 1979, http://www.un.org/womenwatch/daw/cedaw/ accessed 21
April 2014. (^22) CEDAW Committee, General Recommendation No 21 (13 th (^) session 1994),
‘equality in marriage and family relations’ [16], <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#rec om21> accessed 21 April 2014. (^23) ICESCR 1966,
<https://treaties.un.org/pages/viewdetails.aspx?chapter=4&lang=en&mtdsg_no=i v-3&src=treaty> accessed 21 April 2014.
HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND FAMILY LAW
a marriage is void where consent of either party is not a real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; …: s 23B(1)(d)
Although Australia and Fiji refer to void and not voidable marriages, while the Matrimonial Causes Act 1973 (EW) refers to both, these provisions originate in common law. Matters akin to those covered by s 23B (Marriage Act (Cth)) and s 32 (Family Law Act (Fiji)) come under s 12 of the Matrimonial Causes Act (EW) as voidable:
- either party has not consented to the marriage, by reference to duress, mistake, unsoundness of mind or otherwise, or capability for valid consent not lacking at time of marriage, but either party suffering from a mental disorder (per the Mental Health Act 1959 (EWS)) of such kind or to such extent as to be unfitted for marriage;
- the respondent suffers from communicable venereal disease at the time of the marriage, or is pregnant by a person other than the applicant.
Focusing on duress and fraud, noting the (purported) forced and arranged marriages distinction, how are these provisions applied and what is the common law background continuing to influence outcomes?
CONSENT, COERCION, FORCE AND DURESS
Wilson LJ’s apparent contention (in Quila) that lack of consent must be proven with additional use of force obfuscates full and free consent and lack of it. Consent is:
- “permission for something to happen or agreement to do something”;^26 or
- “to give assent or approval”;^27 or
(^26) Shorter Oxford English Dictionary (5 th (^) edn, OUP 2002). (^27) Merriam Webster Dictionary (11 th (^) edn, Random House 2005).
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- a “concurrence of wills” where:
“Express consent is that directly given, either lira voce or in writing. Implied consent is manifested by signs, actions, or facts. Or by inaction or silence, which raise a presumption that consent has been given … It is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side.” 28
“Force” is defined as “compulsion, constraint or obligation to do something”; “driving or propelling against resistance”;^29 “to bring about or effect by force” or “bring about of necessity or as a necessary result”; “to put or impose (something or someone) forcibly on or upon a person”;^30 “to compel by force; overcome the resistance of”; “exertion or the use of exertion against a person or thing that resists; coercion.”^31 “Coercion” is “to make (someone) do something by using force or threats”; “to get (something) by using force or threats”;^32 “to restrain or dominate by force”; “to compel to an act or choice”;^33 “to achieve by force or threat”.^34 “Duress” is “compulsion by threat or force, coercion, constraint”; “Law: such constraint or coercion as will render void a contract or other legal act entered or performed under its influence”;^35 “forcible restraint, especially imprisonment”.^36 Synonyms include intimidation, pressure, bullying, browbeating.“Full and free” imports the notion that a party suffers no irresistible impediment or pressure on their will so as to overbear it. Contemporary nullity cases assert that overt force or threats of a physical nature are unnecessary. Yet Scott v Sebright^37 continues to be cited as leading authority. Butt J in this case asserts that for fraud and duress consent to marriage should be “tested and determined in precisely the same manner as … any other contract”, Butt J continued:
“True it is that in contracts of marriage there is an interest involved above and beyond that of the immediate parties. Public policy requires that marriage should not be lightly set aside, and
(^28) Black’s Law Dictionary (10 th (^) edn, Thomson West 2014). (^29) Random House Dictionary (Random House 2011). (^30) World English Dictionary (OUP 2012). (^31) Collins English Dictionary (11 th (^) edn, HarperCollins, Glasgow, 2011). (^32) Random House Dictionary (n 29). (^33) World English Dictionary (n 30). (^34) Collins English Dictionary (n 31). (^35) Random House Dictionary (n 29). (^36) Collins English Dictionary (n 31). (^37) (1886) 12 PD 21.
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and beyond that of the immediate parties” is to make sure that no marriages are entered into without full and free consent. The policy requirement not to maintain such marriages must be just as important (or more so) a public interest as maintaining marriages entered into by full and free consent. This is the impetus behind concerns as to forced marriage – and arguably equally applicable to arranged marriages.^40 More recent cases purportedly abjure Scott v Sebright ’s notion that duress must involve danger and fear. Hirani v Hirani^41 is frequently cited. There, annulment was refused at first instance on the basis that duress asserted as applied by Ms Hirani’s parents was not duress as required by law. Nineteen at the time of the marriage, Ms Hirani was living in England with her parents, British Indian Hindus who objected to her association with Mr Hussain, a Muslim of Indian background. They arranged for her marriage to Mr Hirani whom she and her parents first met at the registry office. The threats directed to Ms Hirani and upon which she relied were articulated as:
“You want to marry somebody who is strictly against our religion? He is a Muslim, you are a Hindu; you had better marry somebody we want you to, otherwise pack up your belongings and go. If you do not want to marry Mr Hirani and you want to marry Mr Husain, go.”^42
The Court accepted that leaving the family home meant Ms Hirani had “no place to go and no means of supporting herself at that age and in those circumstances”, and “in spite of her opposition, ... was forced to go through with the civil ceremony”.^43 Consistent with Hindu tradition, she returned to her parents’ home, going to live with Mr Hirani after the religious/traditional ceremony some six weeks later. Ms Hirani’s evidence was that she “was crying all the way through” the ceremony and “was utterly miserable”.^44 She lived with Mr Hirani for six weeks, not engaging in sexual intercourse with him. Upon leaving, she went to Mr Hussain. Granting the appeal and annulment, Ormrod LJ said it was not necessary to find a threat to life, limb or liberty to establish duress, the key question being “whether threats or pressure were such as to overbear” the
(^40) As to arranged marriages see further below. (^41) [1982] EWCA Civ 1, [1983] 4 FLR 232. (^42) Ibid. (^43) Ibid. (^44) Ibid.
HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND FAMILY LAW
individual’s will, destroying the reality of consent.^45 Whatever form duress takes, “it must involve coercion of the will so as to vitiate consent”.^46 The threats and pressure employed by Ms Hirani’s parents “clearly overbore her will”, invalidating or vitiating consent.^47 This contests Szechter v Szechter^48 where threat to life, limb or liberty was the criterion by which reality of consent should be measured.^49 Yet shortly before Hirani , Singh v Kaur^50 reiterated this standard, saying a lack of threats to life, limb or liberty meant the nullity application was rightly refused, relying on Singh v Singh.^51 In the latter, Ms Singh was 17 years when undergoing a civil marriage ceremony, never having met the man previously. Being Sikh, the coercion she related was religion, custom and duty to her parents. This was considered inadequate to vitiate consent. In the former, whilst in India, a 21-year-old who from four years of age had lived in England was told by his parents that refusing to marry the partner they had chosen would bring shame upon the family and he would be disowned – banned from the family home and family business. His contention that emotional coercion vitiated consent was not accepted as life, limb or liberty threatening. Nonetheless, in NH v MI ,^52 Munby J observed it is “no longer the law, if it ever was”, that marriage was voidable for duress “only if ... there was threat of immediate danger to life, limb or liberty …”^53 Yet NH v MI ultimately hung upon facts clearly showing extreme force and threats:
(^45) Ibid 2-3. (^46) Ibid 3. (^47) Ibid. (^48) [1971] P 286. (^49) Ibid 297-98. (^50) [1981] FamLaw 152. (^51) [1971] P 226. (^52) [2006] EWHC 1646 (Fam). (^53) Ibid [27], citing Szechter ibid (n 48)), Singh v Singh (ibid (n 52)) and Singh v
Kaur (ibid (n 51)) as support for the earlier position, and Hirani (ibid (n 41)) as the ‘new’ position. For a view on the situation in Australia, where the authors assert a ‘disjuncture between domestic legal and political responses to forced marriage faced by nationals of Western states with the response of refugee law to forced marriages occurring elsewhere’ see Catherine Dauvergne and Jenni Millbank, ‘Forced Marriage as a Harm in Domestic and International Law’ (2010) 73 (1) MLR http://papers.ssrn.com/sol3/papers.cfm?abstratct_id=1563842 accessed 2 May
- As the present article confirms, Dauvergne and Millbank attribute greater latitude in nullity applications than exists in practice. See also Frances Simmons and Jennifer Burn, ‘Without Consent: Forced Marriage in Australia’ (2012) 36 Melbourne University Law Review 970. Similarly for the UK, David Bradley, ‘Duress and Arranged Marriages’ (1983) 46 MLR 499; A Bradney, ‘Duress,
HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND FAMILY LAW
AUSTRALIAN CASES
Australian cases reiterate that life, limb and liberty need not be threatened or at stake. Yet again nullity is granted where clear threats or physical force, kidnapping or false imprisonment and the like exist. Cases where these are not present, yet nullity is granted, are elusive.^54 In the Marriage of S^55 is cited as leading authority. Ms S arrived in Australia with her family from Egypt. At 16, she married in a Coptic Orthodox Church. Her evidence was that the marriage took place against her will, under parental pressure:
“... right up to the time of the ceremony I still did not want to go through with it. My parents … insisted I go through with it and I could not stand up against them.”^56
Watson J held she was “caught in a psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture [demanding] filial obedience” and, if having “no consenting will”, it was “because these matters were operative – not threats, violence, imprisonment or psychological constraint”. 57 Referring to Scott v Sebright and Cooper (falsely called Crane) v Crane,^58 Watson J said the emphasis in some judgments “on fear and terror … seems unnecessarily limiting” because:
“A sense of mental oppression can be generated by causes other than fear or terror. If … circumstances … taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.”^59
(^54) See further ‘Culture, Force and Fraud’, re Nagri & Chapal [2012] FamCA 464
(1 June 2012). (^55) (1980) 42 FLR 94. (^56) Ibid 98-99. (^57) Ibid 103. (^58) (1981) P 369. (^59) In the Marriage of S , (ibid (n 55)) 104.
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The effect of oppression on the individual’s mind, not the form of oppression (whether constraint, threat or otherwise), “should be the operative factor” and:
“… I cannot see how I can read down the natural and ordinary meaning of “duress” as equated to oppression or “coercion” to such a degree that there is to be no annulment where the lack of real consent arises from non-violent but nevertheless controlling parental coercion.”^60
Not insignificantly, Ms S was 16 at the time of the marriage, economically dependent upon and living at home with her parents, paralleling Hirani. Even if Ms S were not orally threatened with being evicted from the family home and disowned, this was at least implicit. Thus in practical terms the Scott v Sebright approach persists. If this were not so, reported grants of nullity on the basis of religious and cultural imposition or pressure and filial duty without additional pressures such as economic dependency would be in evidence. In referring as it does to oppression as interfering with “voluntary consent” In the Marriage of S endeavours to position duress in a context admitting of imposition comprehending more than narrow notions of force or threat of force. Yet cases citing In the Marriage of S ultimately generally rely upon far greater explication of coercion or duress, often continuing to refer to Scott v Sebright and Cooper v Crane.^61 Take, for example, Zoumaris & Paradisio.^62 The facts properly led to a refusal of nullity. However, despite giving a nod to In the Marriage of S, Burr J said:
“Duress requires the consent of one party to have been obtained by force or threat of force. It is not sufficient for the strong will of one to have imposed on the will of a weak or impressionable character …”^63
This recurs time and again, with duress or coercion applied by reference to physical or threated physical assault or constraint including
(^60) Ibid. (^61) See further on Cooper v Crane (ibid n 58) under fraud, supra. (^62) [2008] FamCA 688 (1 August 2008). (^63) Ibid [24].
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direct threats to Mr U that he would kidnap and rape Mr U’s mother and sisters. In early 2009, he slapped his daughter’s face on two occasions and struck her on the back. Ms Kreet returned to Melbourne, advising police that she was living with Mr U freely.
- Ms Kreet’s parents flew to Melbourne, persuading her to return to Sydney. Apologising and asking her to forgive them, they offered a “proper wedding” to Mr U in India for her eighteenth birthday. Mr U went to Sydney to discuss wedding plans. Ms Kreet agreed to a traditional wedding with Mr U in India.
- In India, her parents confiscated Ms Kreet’s passport, denied her telephone rights with Mr U, and concluded discussions about “suitable husbands” by providing one whereupon Ms Kreet’s refusal was met with Mr Kreet’s repeated threat to rape and kidnap Mr U.’s mother and sisters.
- Thus arranged, the marriage went ahead.
Again, coercion or duress included physical assault, confinement and threats. Notably, too, the applicant/petitioner’s youth is a central feature. This and the risk of economic survival parallels Hirani and In the Marriage of S. Hence the question whether more than lip service is paid to filial duty, cultural imposition and religious factors in arranged marriages. What of these factors in fraud and arranged marriage?
FRAUD AND CONSENT – MOSS v MOSS
Fraud nullity cases return to Moss v Moss (Otherwise Archer),^68 Scott v Sebright and Cooper (falsely called Crane) v Crane. Post-dating them, Australian, English and Fijian statutory provisions set out explicitly some circumstances these authorities discuss under fraud generally. The insight provided is instructive. Involving pregnancy concealed at time of marriage, in Moss fraud is considered in two aspects:
- impersonation leading a party to marry another, not realising that that other is not the actual person (physical person) s/he believes is the contracting party; and
(^68) [1897] P 263.
HUMAN RIGHTS, ‘ARRANGED’ MARRIAGES AND FAMILY LAW
- deliberate inducement of a person with a disability – expressed as “feeble minded” – to marry.
Mr Moss married, not at the time (fully) realising his bride was pregnant to another man. Ms Archer, the bride, hid this from Mr Moss. Originally meeting when both were in service, Ms Archer and Mr Moss re-met in 1895, thereafter seeing one another occasionally. In mid-1896 at her father’s house, she “pressed” Mr Moss to marry her. He agreed. Later that year, at the wedding, his “suspicions for the first time aroused”, Mr Moss “taxed [her] with being pregnant”.^69 She denied it. A week or so later, confessing to the pregnancy, Ms Archer (now Moss) alleged the putative father had seduced her. Mr Moss left. A month later, the child was born. The Court accepted that at the time of marriage Mr Moss “did not know of his wife’s condition”, having “no grounds” for inquiring “as to her character”^70. Counsel “for” pregnancy concealment as fraud vitiating consent contended:^71
- no English court decision addressed a prospective wife’s concealment of pregnancy from the intended husband at time of marriage as a nullity ground;
- nonetheless the facts fell “within the principle of law [avoiding] a contract on the ground that consent of [a party was] obtained by fraud”;
- a marriage contact’s validity is “dependent upon the same considerations” as any other contract’s validity, to be “tested in the same way”;
- both parties’ consent is mandatory, being consent with “knowledge on their part of all material facts”;
- “a material fact was suppressed” by the intending wife;
- her conduct was a fraud on the husband, any child born in wedlock being presumed his, requiring him to “support another man’s child”;
- pregnancy at time of marriage “rendered [Ms Archer] incapable … of bearing a child to her husband” at that time and, through concealment, was a fraud on “essentials of the marriage relation”;
- US authority establishes by Reynolds v Reynolds^72 “clear law that concealed pregnancy is a ground of nullity”, and by Donovan v
(^69) Ibid 265. (^70) Ibid 266. (^71) Ibid 266-267.
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deception which can be available to set aside a contract of marriage knowingly made.”^79
Marriage contracts were distinguished from ordinary commercial contracts, marriage being “a civil contract and a religious vow” parties are not entitled to dissolve of their own volition.^80 This tends to Munby J’s public interest or public policy argument in NS v MI. Moss limits (in ways applicable neither to the Australian, Fiji nor current UK position) the grounds upon which marriage can be annulled. Setting this out in detail is essential to understanding fraud in present law, consistent with relevant statutory provisions. In Moss , Jeune P pinpointed the need for:
- both parties’ voluntary consent;
- compliance with legal requirements of publication and solemnisation, so far as law deems essential;
- no incapacity in parties either by age, physical capacity or relationship by blood or marriage.
He said failure in those respects, but (he believed) in no others served to render a marriage void or voidable:
“It has been repeatedly stated that a marriage may be declared null on the ground of fraud or duress. But, on examination, it will be found that it is only a way of amplifying the proposition long ago laid down … that the voluntary consent of the parties is required.”^81
As with any other contract, duress in marriage contracts is, Jeune P said, “an absence of a consenting will”, and with fraud, this “does not include such fraud as induces a consent, but is limited to [that procuring] the appearance without the reality of consent”:^82
- the most simple instance is personation, or as per Lord Ellenborough in Rex v Burton-on-Trent^83 , adopting another name for concealment vis-a-vis the putative marriage partner; or
(^79) Ibid 293. (^80) Moss (ibid (n 68)) 267. (^81) Moss (ibid (n 68)) 268, citing Fulwood’s case (1638) Cro Car 482, 488, 493. (^82) Ibid (n 68). (^83) (1869) 3 M&S 537.
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- taking advantage of a “weak” though not “absolutely insane” mind to induce entry into a contract despite a party’s lack of understanding: Portsmouth v Portsmouth^84 , Harrod v Harrod.^85
In all cases where fraud constitutes a marriage nullity ground indicates procurement of agreement by form without substance. Annulment flows not because fraud is present, but because consent is absent:
“This is illustrated by the imaginary case suggested … in Reg v Mills^86 of a mock marriage in a masquerade where the kind of result … fraud might have produced would be produced by mistake. [There], there would be no fraud, but for want of real consent the marriage would be declared void. But when there is consent no fraud inducing that consent is material.”^87
Referring to Wakefield v Mackay^88 Jeune P noted similar, more recent cases where error as to family or fortune procured by “disingenuous representation” cannot contradict marriage validity, for “no disparity of fortune or mistake [of] qualities of the person” can impeach “the vinculum of marriage”:^89
“The strongest case [established] of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not [release] from claims which though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has been induced.”^90
Scott v Sebright is often cited for a broader nullity concept. This Moss explains as a misreading: it was “a case of deception and force acting on a weakened mind”, simply establishing that for marriage, as for other contracts, fraud and duress may “render an apparent consent in truth no
(^84) 1 Hagg Ecc 355. (^85) (1854) 1 K&J 4. (^86) (1844) 10 Cl&F 534, 785. (^87) Moss (n 68) 268-69. (^88) 1 Phillim 134, n 137. (^89) Moss (ibid (n 68)) 269 citing Ewing v Whatley 2 Hagg Cons 175, 183. (^90) Moss (ibid (n 68)) 269-270 citing Sullivan v Sullivan (1818) 2 Hagg Cons 283,
