Law - Family Law Essay Example | Topics and Well Written Essays - 1750 words

Law - Family Law - Essay Example This paper seeks to discuss some elements of family law and its legal principles. The paper will explore the subject of marriage, separation, and divorce with the aim of advising a party to a case. Facts Samira, a ‘nineteen-year-old’ got married to Devesh when she was still sixteen years old. Devesh was then 22. Their respective parents organized the marriage, and Samira and Devesh did not meet each other until their wedding day. The marriage was against Samira’s wish as she was in love with another person, Clay, who had a different cultural background. She knew that her parents would not approve of her marriage to Clay and agreed to their planned marriage in order to avoid conflict with her family. Her decision was further influenced by the isolation that she would be subjected to by both her family and the entire society for disobeying her parents to marry Clay and not Devesh. Even though Samira decided to forget about Clay and settle in her marriage, she inform ed Devesh of her then existing relationship, a fact that affected Devesh and has been a turbulent element in their marriage. Both parties decided to work out their marriage for the sake of their families. Samira has however started seeing Clay who wants her to cohabit with him. She now believes that her family can accept Clay if they get married but fears the possibility of isolation for divorcing Devesh. Issues 1. Validity of the marriage, whether the marriage is valid or voidable 2. Termination of the marriage, whether Samira is able to terminate the marriage and by which means 3. Possible defences against termination of the marriage and whether they can succeed in the case 4. Possible remedies 5. Breach of marriage obligations prior to termination Ruling and advice 1. Validity of the marriage One of the fundamental principles in family law is the existence of a legal marriage. Based on the contractual aspects of a marriage, it can be valid, void, or voidable. This is because a ma rriage is an agreement and is regulated by laws of contract. While a divorce is dissolution of a legal marriage, an annulment refers to pronouncement of lack of a legal marriage between two parties. Annulment is a consequence of a union, in the form of a marriage that was either void or voidable. Oliphant and Steegh define a voidable marriage as one that is considerably legal until an order is issued to its nullification by a judicial process (Oliphant and Steegh, 2007, p. 48). One of the conditions that may render a marriage voidable is lack of contractual capacity of the parties (Stark, 2005, p. 17). Being a legally binding agreement, marriage is largely regulated by the law of contract. Contractual capacity of the parties is therefore an essential element in determining validity of a marriage. Either under the general principles of a contract, a party lacks contractual capacity if the party is a minor, is intoxicated or if the person is in sane. Contracts entered into by these pa rties are therefore considered as either voidable or void. Voidable agreement can however be ratified by the disadvantaged party at discretion. Samira therefore stands a high chance of annulling the marriage as was held in the case of Pazpenda De Vire v Pazpenda De Vire that presumptions of a legal marriage are rebuttable on strong grounds. Her minority age is a strong basis for rebutting existence of a legal marriage (Helewitz, 2010, p. 124- 127; Bainham, 2003, p. 165). The extent to