Discuss about the Conflicting Laws for Hypothetical Situation?
The purpose of this paper is to look into a hypothetical situation created in the future, between two conflicting laws. Before placing the argument, this paper would like to create an understanding about the statutory laws which need to be discussed. It is a historic fact that UK has never written down its constitution, still the country has a robust judicial system and a more powerful and constitutional parliament. Based on the experience of centuries, the UK governments have been practicing laws under two legal categories – the Common Law which results from the judgments of the judicial system and the Statute Law which is drafted and enacted by the parliament.
Although both are used for managing the legal system of the land, the difference lies in the way these are created and implemented effectively[1]. Statute Laws, being drafted, discussed and deduced from the Bills presented in the parliament by the legislators, are written laws and are specifically created to resolve a problem in the society. After being deliberated in both houses of the parliament, the Bills become Acts after assent is given by the Monarch. Common Laws are derived from court judgements on cases which create immense public influence. Since these are not published, these laws can be interpreted and used by experts in the courts of law.
Administrative Laws are those laws which deal with procedures, rights, duties, powers and liabilities of administrative bodies which have the responsibility of administering public policies[2]. The two conflicting laws, which are to be discussed in this paper, The Marriage Act of 1949 and The Family Law Act of 1996 are both Administrative Laws, although their application is connected with different sections of the society, as we shall discuss further. But let us first understand the conflict and chart a recourse for both the Acts, so that their application, usage and area of administration is clear.
Let us briefly narrate the scope of both the Acts.
The Marriage Act, 1949
The scope of this Act relates to solemnising and registering marriages in the UK by incorporating the necessary corrections and improvements as are authorised under the Consolidation of Enactments (Procedure) Act, 1949.
The Family Law Act, 1996
The scope of this Act relates to provisions connected with –
separation and divorce of married couples;
legal aid and mediation to be provided to married couples when in dispute in relation to family matters;
proceedings related to cases concerning broken marriages;
preventing molestation to one partner at the hands of the other partner;
including certain cases covered under the Children Act, 1989.
The First Assumption
This assumption is made in 2016 to the Marriage Act. It is being assumed that Section 1 of the Act is changed through this Marriage Act of 2016[3], raising the marriageable age of individuals from 16 years to 25 years. Also, Section 3 of the existing Act is changed by inserting the new provision which states that, and I quote – “The provisions of this Act shall prevail over any subsequent Act”. Unquote. Section 3 is further amended with the following provision, Quote – “This Act shall not be amended or repealed unless the subsequent Act is passed by an 80% majority in both Houses of Parliament”. Unquote. Now, if the amended Section 3 is studied minutely, it suggests that this Act, meaning the Marriage Act, 2016, cannot be repealed or amended till a clear majority of 80% in both house of Parliament pass the amended law[4].
Legal Implications
This paper has already made it clear at the beginning of the discussion that the scope of the Marriage Act is to aid the people in solemnising and registration of their marriages in the UK. It is the prerogative of this Act and the duty of every government, to bring about any changes related to the factors concerning marriage of persons in the UK. Any legal aspect, connected with any section of the Act can be amended or repealed or ratified only after both houses of Parliament pass the bill concerned with that amendment and the bill is given the Royal Assent to make it an Act, which can then be made applicable in the country through courts of law[5].
The Second Assumption
The time takes a leap of 5 years and in 2021, the newly elected government, by a simple majority brings about a legislation to amend the Family Law Act which states that the marriageable of an individual is lowered from the existing 25 years to 18 years. This new Act receives the Royal Assent and is decreed as Family Law Act of 2021[6].
Legal Implications
This paper has already made it clear at the beginning of the discussion that the statutes of the Family Law Act are applicable to matters connected with disputes or break-up or custody of children between two persons who have been legally considered as married under the statutes of the Marriage Act[7]. Nowhere, the laws, either Common Laws or Statutory Laws have ever introduced or imposed or amended or repealed any sections of the Marriage Act through enactment of a bill of parliament or sections of existing laws or court judgments which are related to statutes, sections or statutes enacted under the Family Law Act[8].
All marriages taking place in the UK must be carried out as per the provisions of the Marriage Act of 1949, as amended by the Marriage Acts of 1970, 1983 and 1994. This claim of marriage in the UK has to be supported by a marriage certificate issued either by the Superintendent Registrar or Registrar or Clergyman under the Marriage Act of 1994. In all of these conditions, there is no mention of the Family Law Act nor is there any requirement concerning a marriage which is governed by the Family Law Act.
The Fourth Lateran Council (1215) required that marriages between two individuals be publicly announced by priests in the churches. This practice continued till the 17th century, when the first recorded Act governing marriages, The Marriage Duty Acts of 1694 and 1695 mandated that marriage licences (known as banns) should be issued. Subsequently, The Marriage (1753) Act laid down certain rules for places where marriages could be solemnised, whom could an individual marry or not allowed to marry. This Act also introduced the requirement that at least two independent witnesses should be present to solemnise the marriage and it also set a minimum marriageable age for the individuals.
The Age of Marriage Act, 1929 was the first to increase the age of individuals for marriage to sixteen. The Marriage Act, 1949 prohibited marriages to be solemnised during evenings and at night and was based on the Marriage Act, 1836 which had forbidden people to marry between six in the evening till eight in the morning. This order was repealed on 1 October 2012[9].
The Marriage Act of 1994 was introduced by Gyles Brandreth as a private member’s bill to make it mandatory that marriages be allowed to be solemnized at certain approved premises. Prior to this act, marriages could only be solemnised in churches or the registrar’s office. More recently, even same-sex marriages were given recognition in England and Wales through the Marriage (Same Sex Couples) Act of 2013. Even marriages of the royal family members were regulated, till 2015 when the Act was repealed, by the Royal Marriages Act of 1772[10].
Even the Human Rights Act 1998 put to rest any doubt about the interpretation of the Marriage Act 1949. It was held that legislations should be interpreted in conformity with the convention rights of the society and this included an individual’s right to marry.
Since the introduction of the Family Law Act in 1986, its main function has been to look into matters related to break-up of marriages in the UK and provide comfort to the estranged couple and their children through statutes which allow them to live with dignity and respect even after separation. The Marriage Act, since its inception, has been looking after the ways, means and methods of uniting two individuals into a blissful co-habitual way of living and building an atmosphere of peace in the society[11].
The contention of this paper in this regard is that the amendment brought about by the government in the Family Law Act, 2021 is void and cannot be executed legally as it is not in the preamble of this Act to make changes in the marriageable age of individuals in the UK. This prerogative rests with the Marriage Act and has been the prerogative of the Marriage Act right from the 12th century, when the laws regarding marriages were first introduced in the erstwhile England[12]. Hence, this paper is of the view that Henry and Ann cannot be considered as legally wedded because of the conflict in the marriageable age.
Barnett, H. 2014, Constitutional & Administrative Law, 10th ed. Routledge, Oxon.
Dinnage, J.D. and Laffineur, J. 2012, Constitutional Law of the European Union, 3rd ed. LexisNexis, London.
Howard, N. 2013, Beginning Constitutional Law. Routledge, Oxon.
Kavanagh, A. 2009, Constitutional Review under the UK Human Rights Act. Cambridge University Press, Cambridge.
Loveland, I. 2012, Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. OUP, Oxford.
O’Neill, A. 2011, EU Law for UK Lawyers, 2nd ed. Bloomsbury Publishing, Oxford.
Schutze, R. 2012, European Constitutional Law. Cambridge University Press, Cambridge.
Tushnet, M., Fleiner, T. and Saunders, C. 2013, Routledge Handbook of Constitutional Law. Routledge, Oxon.
[1] H. Barnett. Constitutional & Administrative Law, 10th ed. (Routledge, Oxon. 2014) p 54
[2] A. O’Neill. EU Law for UK Lawyers, 2nd ed. (Bloomsbury Publishing, Oxford. 2011) p 207
[3] N. Howard. Beginning Constitutional Law. (Routledge, Oxon. 2013) p 108
[4] A Kavanagh. Constitutional Review under the UK Human Rights Act. (Cambridge University Press, Cambridge. 2009) p 27
[5] M. Tushnet, T. Fleiner & C. Saunders. Routledge Handbook of Constitutional Law. (Routledge, Oxon. 2013) p 36
[6] I Loveland. Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. (OUP, Oxford. 2012) p 117
[7] H. Barnett. Constitutional & Administrative Law, 10th ed. (Routledge, Oxon. 2014) p 63
[8] M. Tushnet, T. Fleiner & C. Saunders. Routledge Handbook of Constitutional Law. (Routledge, Oxon. 2013) p 36
[9] R. Schutze. European Constitutional Law. (Cambridge University Press, Cambridge. 2012) p 162
[10] J.D. Dinnage & J. Laffineur. Constitutional Law of the European Union, 3rd ed. (LexisNexis, London. 2012) p 180
[11] J.D. Dinnage & J. Laffineur. Constitutional Law of the European Union, 3rd ed. (LexisNexis, London. 2012) p 135
[12] R. Schutze. European Constitutional Law. (Cambridge University Press, Cambridge. 2012) p 135
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