“In the Official Solicitor’s view the information material to a decision about where E should live, whether or not she should marry and whether or not she should have further contact with [S] is: 1 Information about E’s understanding of the implications of marriage, the concept of marriage, sex, the ability to care for any children resulting from the relationship, the legal relationship between husband and wife, implications of marriage on finance and property rights. 2 Information about any physical, psychological or emotional harm or distress which may be sustained as a result of further contact with [S] and/or the marriage. 3 Information about the advantages and disadvantages for the individual and in her lifestyle or about the opportunities which further contact with [S] and/or marriage will provide in the short term, medium term and long term. 4 Information about E’s understanding of the gravity and implications of [S]’s previous criminal convictions, his acceptance of or lack of acceptance of guilt and the risk [S] poses of committing further sexual or violent offences in the future. 5 Information about E’s understanding of the weight to be attached to allegations made against [S] that may not result or have resulted in criminal convictions to date.”
“The issue of capacity to make the relevant decision should be determined first. Only if the person is found not to have decision making capacity will it be necessary to address the best interest issue.”
“If E lacks capacity to make her own decisions, please then advise as to best interests as follows: … Marriage (a) Is it in E’s best interests to enter into a marriage with [S]? (b) If not please (1) indicate why not (2) indicate whether any steps can be taken in the form of education or otherwise.”
“At the present time I would only be prepared to give my opinion that she has the capacity to litigate.”
“1 Has [E] the capacity to understand the nature of the contract of marriage generally (as opposed to the implications of marriage to [S])? 2 Has [E] the capacity to understand the responsibilities created by the contract of marriage generally? 3 Has [E] the capacity to give valid consent to marriage generally?”
“The nature of the issue between the parties may be shortly stated. [SCC] says that the issue of capacity to marry should be considered in the context of E’s apparent wish to marry [S]: in other words, does she have capacity to make that particular decision? [E] says that the issue should be posed in non case-specific terms: in other words, has E the capacity to understand the nature of the marriage contract generally as well as the responsibilities created thereby.”
“Has E capacity to make decisions as to (a) whether she should have contact with [S], (b) as to the extent of that contact, and (c) whether or not she should marry [S]?”
“Some years ago the question of what amount of mental capacity was required to make a man responsible for crime was considered in McNaughtens Case (1843) 10 Cl&F 200. No doubt the question is treated somewhat differently in a criminal suit to what it is here (the difference I will explain presently); but there is, as you will easily see, an analogy between the cases which will be of use to us in considering the points before us. Lord Chief Justice Tindal, in expressing the opinion of all the judges, said – “In all cases every man is to be presumed to be sane until the contrary is proved, and it must be clearly proved, that at the time of committing or executing the act the party was labouring under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”
“It is well established that capacity to perform a juristic act exists when the person who purported to do the act had at the time the mental capacity, with the assistance of such explanation as he may have been given, to understand the nature and effect of that particular transaction”
“English law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself … The authorities are unanimous in support of two broad propositions. First, that the mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of that transaction when it is explained.”
“The authorities … provide ample support for the proposition that, at common law at least, the test of mental capacity is issue specific: that … the test has to be applied in relation to the particular transaction (its nature and complexity) in respect of which the question whether a party has capacity falls to be decided.”
“The answer to [the] inquiry does not turn on whether or not the person has the requisite mental capacity to make some other legally effective decision … The test is issue specific; and, when applied to different issues, it may yield different answers.”
“ … in law capacity depends on time and context … inevitably a decision as to capacity in one context does not bind a court which has to consider the same issue in a different context.”
“Doctors faced with a refusal of consent have to give very careful and detailed consideration to the patient’s capacity to decide at the time when the decision was made. It may not be the simple case of the patient having no capacity because, for example, at that time he had hallucinations. It may be the more difficult case of a temporarily reduced capacity at the time when his decision was made. What matters is that the doctors should consider whether at that time he had a capacity which was commensurate with the gravity of the decision which he purported to make. The more serious the decision, the greater the capacity required. If the patient had the requisite capacity, they are bound by his decision. If not, they are free to treat him in what they believe to be his best interests.”
“What matters is whether at that time the patient’s capacity was reduced below the level needed in the case of a refusal of that importance, for refusals can vary in importance. Some may involve a risk to life or of irreparable damage to health. Others may not.”
“For the patient offered amputation to save life, there are three stages to the decision (1) to take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs. … submissions divide over the definition of the capacity which enables an individual to refuse treatment. Mr Gordon argues for what he calls the minimal competence test, which he defines as the capacity to understand in broad terms the nature and effect of the proposed treatment. It is common ground that C has the legal capacity to initiate these proceedings without a next friend, within the terms of RSC, Ord 80. Mr. Gordon contends that the capacity to refuse treatment is no higher and is equally no higher than the capacity to contract. I reject that submission. I think that the question to be decided is whether it has been established that C’s capacity is so reduced by his chronic mental illness that he does not sufficiently understand the nature, purpose and effects of the proffered amputation. I consider helpful Dr. Eastman’s analysis of the decision-making process into three stages: first, comprehending and retaining treatment information, second, believing it and, third, weighing it in the balance to arrive at choice.”
“A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or to refuse treatment. That inability to make a decision will occur when: (a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question; (b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision.”
“the test to be applied … is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law – whether substantive or procedural – should require the interposition of a next friend or guardian ad litem … a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and … he should not be regarded as unable to make a rational decision merely because the decision which he does, in fact, make is a decision which would not be made by a person of ordinary prudence.”
“the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.”
“What, however, does seem to me to be of some importance is the issue-specific nature of the test; that is to say the requirement to consider the question of capacity in relation to the particular transaction (its nature and complexity) in respect of which the decisions as to capacity fall to be made.”
“It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions up to and including a decision whether or not to settle, but lacking capacity to decide (even with advice) how to administer a large award. In such a case I see no justification for the assertion that the claimant is to be regarded as a patient from the commencement of proceedings.”
“I reject the submission that a person who would be incapable of taking investment decisions in relation to a large sum received as compensation is to be held, for that reason, to be incapable of pursuing a claim for that compensation. I accept that capacity to pursue a claim requires capacity to take a decision to compromise that claim; and that capacity to compromise requires an understanding of what the effects of a compromise will be – in particular, an understanding that it will be necessary to deal with the compensation monies in a way which will provide for the future. But that does not, as it seems to me, require an understanding as to how that will be done.”
“I accept that the tests for litigation capacity and capacity are not identical and that an adult who lacks litigation capacity may nonetheless have capacity with regard to the matters which are the subject of that litigation …. I am not, however, persuaded that the converse can hold true, namely that an adult who lacks capacity on the matters which are the subject of litigation may nonetheless have litigation capacity with respect to that litigation. It seems to me that a person who lacks capacity, whether in a medical treatment, adult welfare or as in this case an issue over capacity to marry, must also be unable, in any litigation which relates to that decision, to receive, consider and assess advice and to weigh it in the balance before giving instructions to his or her lawyers.”
“If Dr [M] is instructed to carry out an assessment of [E]’s capacity and was to report that in her view [E] does lack such capacity on one or more of the matters which are the subject of this litigation, it seems to me that her conclusion would inevitably cast doubt on her earlier conclusion that [E] has litigation capacity. I would then need to reconsider my original decision not to consent to act as [E]’s litigation friend.”
“capacity to litigate … is a separate issue from capacity to make decisions about medical treatment, although in many cases … if there is no capacity to litigate, then by reason of the underlying matrix of factual evidence it would follow that there is no capacity to make decisions about treatment.”
“although in some circumstances there may be a different answer to the question of capacity to litigate and capacity to make decisions about medical treatment, this is one of those cases in which the evidence is overwhelming that she lacks capacity to make medical treatment decisions, and it follows that a person who has a very unshakeable delusional belief about the very subject matter of the litigation cannot possess the ability to understand, retain, assimilate or act upon advice received as to the conduct of the litigation.”
“Was the deceased ... capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? To ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.”
“It is, I conceive, perfectly clear in law that a party may come forward to maintain his own past incapacity, and also that a defect of incapacity invalidates the contract of marriage, as well as any other contract. It is true that there are some obscure dicta, in the earlier commentators on the law … , that a marriage of an insane person could not be invalidated on that account, founded, I presume, on some notion that prevailed in the dark ages, of the mysterious nature of the contract of marriage, in which its spiritual nature almost entirely obliterated its civil character. In more modern times it has been considered, in its proper light, as a civil contract, as well as a religious vow, and, like all civil contracts, will be invalidated by want of consent of capable persons.”
“Here then the law, and the good sense of the law, are clearly laid down; want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent. It is not material whether the want of consent arises from ideotcy or lunacy, or from both combined: nor does it seem necessary, in this case, to enter into any disquisition of what is ideotcy, and what is lunacy; complete ideotcy, total fatuity from the birth, rarely occurs; a much more common case is mental weakness and imbecillity, increased as a person grows up and advances in age, from various supervening causes, so as to produce unsoundness of mind. Objects of this sort have occurred to the observation of most people. If the incapacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecillity, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract. The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be difficult, in most cases, to decide upon the result of the circumstances; and this appears to be a case of that description, the circumstances being such as to leave no doubt upon my mind.”
“It is worthy of remark that infants of the age of twelve years being females, and of the age of fourteen years being males, are competent to contract marriage, though incapable of entering into any other contract.”
“As I have said, persons of very youthful age are capable of entering into the marriage contract. The contract itself, in its essence, independently of the religious element, is a consent on the part of a man and women to cohabit with each other, and with each other only. All that is required by the law of Scotland is that the consent should be given in a solemn manner; and that is all that is necessary in a marriage before a registrar in England, according to recent legislation.”
“When the hands of the parties are joined together, and the clergyman pronounces them to be man and wife, they are married, if they understand that by that act they have agreed to cohabit together and with no other person. I can have no doubt that this woman understood this. She has been residing previously with a married couple, and must have known that they lived together in a manner differently from unmarried persons like herself. She remained up to the time of her own marriage perfectly respectable and chaste; she went through the solemnity in which the hands of herself and her husband were joined. A child was born of the marriage in due time and not sooner. She, who was aware of what the proprieties of life required, and had remained chaste until this time, after the celebration of this marriage and not before, allowed the communication of her husband. That shews that she was aware she had performed a solemn act, imposing new duties, and she was constant to her husband during the rest of her life – a period of nearly thirty years. Am I then to say that this person, whose soundness of mind it is impossible to impeach, was so dull of intellect as not to be capable of contracting marriage?”
“If the validity of a marriage be disputed on the ground that one or other of the parties was of unsound mind, the question will be, was he or she capable of understanding the nature of the contract which he or she had entered into.”
“The question which I have to determine is not whether she was aware that she was going through the ceremony of marriage, but whether she was capable of understanding the nature of the contract she was entering into, free from the influence of morbid delusions upon the subject.”
“she was not able to know and appreciate the act she was doing at that time, but … took an entirely morbid and diseased view of it.”
“All the authorities bearing on the subject have been brought to my notice, but I do not think it necessary to review them, as I am of opinion that every case of this kind must be decided upon its own facts. Nor do I consider that it would be useful to borrow from my predecessors, or to attempt myself to form any exact definition of what constitutes soundness of mind. I accept for the purposes of this case the definition which has been substantially agreed upon by the counsel to whom I have to express my obligations for the very able assistance they have given me, namely, a capacity to understand the nature of the contract, and the duties and responsibilities which it creates. It is to be observed, however, that this only conceals for a moment the difficulties of the inquiry, for I have still to determine the meaning to be attached to the word “understand.”
“I propose, before considering the evidence, to call attention to the language of the President (Sir James Hannen) in Hunter v Edney (otherwise Hunter), as follows: “The question which I have to determine is not whether she” (the respondent) “was aware that she was going through the ceremony of marriage, but whether she was capable of understanding the nature of the contract she was entering into, free from the influence of morbid delusions on the subject.”
““Assume that for three weeks before the ceremony he had been drinking large quantities of whiskey, was he, on February 8, 1923, in your opinion, in a condition to understand all the consequences of matrimony.” (The President): “Did you ever know anybody who was in a condition to understand all the consequences of matrimony?” (The witness): “No, my Lord”.”
“This case is one, it seems to me, of the very greatest difficulty. The position of the petitioner is most deplorable; there can be no question that she has gone through a ceremony of marriage with a mental degenerate. But that is not the question. The question is whether the respondent was mentally capable of understanding the nature of the marriage contract, and the duties and responsibilities which it creates. As Sir J Hannen said in Durham v Durham, a mere comprehension of the words of the promises exchanged is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into. Now that the respondent knew that he had proposed marriage and the effect of the ceremony and its primary consequences I cannot doubt, but whether his mind at the time was in such a condition that he appreciated and understood the effect of the ceremony is more doubtful. The evidence of members of his family has satisfied me that he was not normal, and that there have been in the past recurrent periods during which he behaved in an unaccountable way after consuming large quantities of alcohol. I have had before me, too, a number of mental specialists, who tell me on their responsibility, and indeed on their oath, that there were with the respondent recurrent periods in which he was the victim of what are called “grandiose delusions.”
“it was not sufficient merely to be able to understand the words of the ceremony or even to know that the party was going through a ceremony. There must be a capacity to understand the nature of the contract and the duties and responsibilities which it created, and from Browning v Reane … there must also be a capacity to take care of his or her own person and property … But as pointed out in Durham v Durham marriage was a very simple contract which did not require a high degree of intelligence to contract”
“the deceased, though he knew perfectly well that he was going through a ceremony of marriage, was lacking in a proper capacity to take care of his own person and property, and … the very nature of the disease was such as to act towards incapacitating him from deciding whether his own health justified him in taking this very important step.”
“It is clear, then, that marriage is in its essence a simple contract which any person of either sex of normal intelligence should readily be able to comprehend. I ask myself the question asked in Hunter v Edney (orse Hunter) by Sir James Hannen P: was the deceased capable of understanding the nature of the contract he was entering into?”
“I prefer in this case to answer the question posed to himself by Sir James Hannen in Hunter v Edney (orse Hunter): was the deceased capable of understanding the nature of the contract he was entering into, free from the influence of morbid delusions on the subject?”
“on the facts of this case is it shown that this man was not of the mental capacity to understand the nature of the contract?”
“It was said, and with truth … that the contract of marriage is in its essence one of simplicity”
“It is to be observed, however, that this only conceals for a moment the difficulties of the inquiry, for I have still to determine the meaning to be attached to the word “understand.”
“On15 January 2003 , at a hearing at which Mr S was represented, Hughes J continued the interim declarations made by Johnson J, provided for Mr S’s contact with S and gave a number of directions, including the appointment of the Official Solicitor as litigation friend; the joint instruction of a consultant psychiatrist to advise on S’s capacity to make decisions as to where she should live and as to contact with Mr S; and the joint instruction of an independent social worker to advise as to her best interests in relation to residence and contact with Mr S. He also laid down a timetable, as a result of which the hearing of the local authority’s claim began before me on21 July 2003 . The relief sought by the local authority is set out in a detailed draft order prepared by the Official Solicitor, a copy of which is annexed to this judgment. In essence it seeks a declaration that S lacks the capacity to decide where she should live and who should provide her with care. It seeks consequential declarations that it is lawful, as being in her best interests, for her to reside at accommodation arranged for her by the local authority. It also seeks a declaration that S lacks the capacity to decide whether to have contact with her father, and upon the nature and extent of that contact, together with a consequential direction that it is in her best interests for contact with her father to be agreed with the local authority in accordance with the detailed schedule attached to the order.”
“The boundary is in any event not always clear: a local authority usually intervenes precisely because the individual apparently wishes to proceed in a way which is obviously inimical to his or her best interests, thereby immediately raising issues as to his or he capacity.”
“If there are difficulties in deciding whether the patient has sufficient mental capacity, particularly if the refusal may have grave consequences for the patient, it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind. The doctors must not allow their emotional reaction to or strong disagreement with the decision of the patient to cloud their judgment in answering the primary question whether the patient has the mental capacity to make the decision.”
“it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence and the assessment of capacity should be approached with this firmly in mind.”
“I confess that I have some difficulty separating the assessment of best interests from that of capacity in a matter such as a decision whether or not to marry, although I can easily see how it would apply in a decision concerning medical treatment. In my opinion, it cannot be in the best interests of the person to enter into a marriage where they do not have capacity to make such a decision.”
“I have to remind myself here that I am considering the question not of the wisdom of the deceased’s marriage in general or his marriage to the plaintiff in particular, but of his capacity to marry.”
“the marriage took place, and the question before this court is not whether it was wise; nor even whether, in all the circumstances, it was decent. The simple question is … whether at the time of the ceremony the deceased was mentally capable of understanding the nature of the contract of marriage so that the marriage could be regarded as valid.”
“It must depend, of course, on the degree of mental imbecility; a person may be slovenly or wildly extravagant, but still capable of entering into a contract of marriage.”
“Although this language may, no doubt, be interpreted in such a way as to lend support to the defendant’s argument based on the facts of this case, I do not think that the judge can be said to have erred in arriving at the conclusion in favour of the plaintiff on this point.”
“The test is issue-specific; and, when applied to different issues, it may yield different answers.”
“I say the strongest case you could establish 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 enable this Court to release him from chains which, though forged by others, he had rivetted on himself. If he is capable of consent, and has consented, the law does not ask how the consent has been induced. His own consent, however procured, is his own act … The law looks no further back.”
“they are married, if they understand that by that act they have agreed to cohabit together and with no other person.”
“It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman.”
“Marriage has been well said to be something more than a contract, either religious or civil – to be an Institution. It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status. The position or status of “husband” and “wife” is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite lights upon their offspring. What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.”
“The matrimonial law is correspondent to the rights and obligations which the contract of marriage has, by the common understanding of the parties, created. Thus conjugal treatment may be enforced by a decree for restitution of conjugal rights. Adultery by either party gives a right to the other of judicial separation; that of the wife gives a right to a divorce; and that of the husband, if coupled with bigamy, is followed by the same penalty. Personal violence, open concubinage, or debauchery in face of the wife, her degradation in her home from social equality with the husband, and her displacement as the head of his household, are with us matrimonial offences, for they violate the vows of wedlock. A wife thus injured may claim a judicial separation and a permanent support from the husband under the name of alimony at the rate of about one-third of his income … Offences necessarily presuppose duties. There are no conjugal duties, but those which are expressed or implied in the contract of marriage.”
“It must be borne in mind, as Sir James Hannen P reminded himself in Durham v Durham, that a mere comprehension of the words of the promises exchanged is not sufficient. The minds of the parties must also be capable of understanding the nature of the contract into which they are entering. The precise nature of that contract may vary with the religious beliefs which the parties practise or profess. Some people may regard marriage as a sacrament; others, while still regarding marriage as a sacred and solemn obligation, do not believe in its sacramental nature. But as Sir James Hannen P pointed out, the essence of the contract is an engagement between a man and a woman to live together and to love one another as husband and wife to the exclusion of all others. It may be in the present times that submission on the part of the woman is no longer, as it was in 1885, an essential part of the contract. But so far as the husband is concerned there remains the duty to maintain her which is, I think, implicit in what Sir James Hannen P described as the duty to protect.”
“The evidence also showed that he was aware of the duties and responsibilities to her in the sense that he took steps to make a home for her with him at the flat in which he had previously lived, and took steps to make room for her there by securing the removal of other persons; the evidence also shows that he was aware of his duty to make financial provision for her.”
“Broadly speaking, it was the view of lawyers and of the law in the middle of the eighteenth century that the property of a woman became her husband’s on marriage, that her body belonged to him, that he could restrain her liberty at his pleasure, and that he could administer physical correction at his discretion, subject, of course, to the rule of moderation. The law was concisely stated in Bacon’s Abridgement in these words: “The husband hath by law power and dominion over his wife.”
“If married life were all that it might be expected to be, looking to the laws alone, society would be a hell upon earth.”
“Today … the position of a married woman has undergone a revolutionary change. Under the Married Women’s Property Acts her property is now her own. She can exclude her husband from enjoying any part of it. It is recognised that her body is not her husband’s, but her own. The husband cannot restrain her physical liberty. He cannot administer any physical punishment. Her freedom of occupation cannot be restricted by him. All professions (save the ecclesiastical) are open to her. She possesses full political rights. The Sex Disqualification Removal Act, 1919, is significant in the breadth of its implications. By virtue of the Matrimonial Causes Act, 1884, no decree for the restitution of conjugal rights can be enforced by attachment, with the result that neither husband nor wife can force the other to return to conjugal association.”
“Husbands and wives have their individual outlooks. They may belong to different political parties, to different schools of thought. A wife may be counsel in the courts against her husband. A husband may be counsel against his wife. Each has a separate intellectual life and activities. Moreover, as Lord Bryce has said, the modern notion is that it is one’s right to assert one’s own individuality”
“We are probably completing the transition from the family to the personal epoch of women”
“Some people think that … you must treat men and women on the same footing. But this Court has not taken, and, I hope, never will take, that view. I trust that … it will ever be remembered that the woman is the weaker vessel: that her habits of thought and feminine weaknesses are different from those of the man”
“The rights of a husband as they used to be have been considerably circumscribed in favour of the wife without very much, if any, curtailment of his obligations, but we have not yet got to the point where the wife can decide where the matrimonial home is to be, and if the husband says he wants to live in such and such a place then, assuming always that he is not doing it to spite his wife and the accommodation is of a kind that you would expect a man in his position to occupy, the wife is under the necessity of sharing that home with him. If she will not, she is committing a matrimonial offence: she is deserting him.”
“Some features of family life are elemental in our society. One is that it is the husband’s duty to provide his wife with a roof ever her head; and the children too. So long as the wife behaves herself, she is entitled to remain in the matrimonial home.”
“there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day.”
“It may be in the present times that submission on the part of the woman is no longer, as it was in 1885, an essential part of the contract.”
“so far as the husband is concerned there remains the duty to maintain her which is, I think, implicit in what Sir James Hannen P described as the duty to protect.”
“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.”
“As to the general question of interpretation it is clear, as both parties are agreed, that Article 12 guarantees a fundamental ‘right to marry’. Whilst this is expressed as a ‘right to marry ... according to the national laws governing the exercise of this right’, this does not mean that the scope afforded to national law is unlimited. If it were, Article 12 would be redundant. The role of national law, as the wording of the Article indicates, is to govern the exercise of the right. The Court has held that measures for the ‘regulation’ of the rights to education (Article 2 of Protocol No. 1) or access to court (Article 6) ‘must never injure the substance of the right’. In the Commission’s opinion this applies also to the national laws which govern the exercise of the right to marry. Such laws may thus lay down formal rules concerning matters such as notice, publicity and the formalities whereby marriage is solemnised. They may also lay down rules of substance based on generally recognised considerations of public interest. Examples are rules concerning capacity, consent, prohibited degrees of consanguinity or the prevention of bigamy. However, in the Commission’s opinion national law may not otherwise deprive a person or category of persons of full legal capacity of the right to marry. Nor may it substantially interfere with their exercise of the right.”
“every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of society, should not be annulled on this or any other ground, not clearly made out. The consequences, in many cases, would be most deplorable. The rights of property would be unsettled and the peace of families destroyed, to say nothing about the effects upon the innocent offspring. The annulment of other contracts would only affect property; but this would do that, and more – it would tell upon the happiness, character, and peace of the parties. The appalling character of these consequences is well calculated to impress the courts with the solemn duty of requiring a clear case for the application of the general principle to this delicate and important contract.”
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