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Lord Chief Justice 2 page

marriage by certificate and licence

Marriage authorized by a certificate and licence issued by the Superintendent Registrar. The main difference between this procedure and that of *marriage by certificate alone is its speed - the marriage may take place any time after 24 hours have elapsed from the day of giving notice. This procedure may also be used when only one party has been resident in the district (although the minimum period of residence is 15 days), and the notice of intended marriage need not be publicly displayed. The procedure costs more than marriage by certificate.

marriage by Registrar-General's licence

Marriage authorized by a licence issued by the Registrar-General of Births, Deaths, and Marriages. Marriage outside a register office or registered building may now take place in certain other licensed venues, such as stately homes.

marriage by religious licence

marriage in the Church of England based on the grant of an ecclesiastical licence, rather than on publication of *banns. A common licence may be granted if one of the parties swears an affidavit that he believes there is no lawful impediment, that at least one of the parties has been resident in the parish for at least 15 days previously (or usually worships at the church), and that (in the case of a minor) the consent of each parent with *parental responsibility (or a person in whose favour a residence order is made) has been obtained. If no caveat is issued against the grant of a licence, the ecclesiastical judge will grant a licence and the marriage may take place immediately. The Archbishop of Canterbury may also grant a special licence authorizing a marriage at any time of the day or night in any church, chapel, or other convenient place (even if unconsecrated).

marriage ceremony

The ceremony creating the status of marriage. There are four main types of marriage ceremony (excluding marriage in military chapels). In a civil marriage, the ceremony takes place in a register office or other registered venue, with open doors, in the presence of the Superintendent Registrar (who conducts the ceremony), a registrar (who supervises registration formalities), and at least two witnesses. Under the Marriage Act 1983, housebound and detained persons may get married where they reside.

In a Church of England marriage, the ceremony usually takes place in church and is celebrated by a clergyman in the presence of at least two witnesses according to the rite of the Book of Common Prayer (or any alternative authorized form of service). A clergyman may refuse to solemnize the marriage of anyone whose former marriage has been dissolved if the former spouse is still living, or whose marriage would have been void for *affinity of the parties before the passing of the Marriage (Prohibited Degrees of Relationship) Act 1986. The marriage ceremony in Quaker and Jewish marriages is governed by the rules of those religions and need not be celebrated in a registered building, or by an authorized person, or in public. All other religious marriage ceremonies must be celebrated in a registered building designated as a place of meeting for religious worship, with open doors, and in the presence of at least two witnesses and a registrar or previously notified authorized person.



marriage settlement

A *settlement made between the parties to a marriage. A settlement made before the marriage ceremony is called an antenuptial settlement; that made after the marriage is a postnuptial settlement. The purpose of a marriage settlement is to provide an income for one spouse or the children, while securing the capital for the other spouse. The courts have power when giving decrees of divorce, nullity, or judicial separation either to order property owned by one spouse to be settled for the benefit of the other spouse and children or to vary the terms of any existing ante- or postnuptial settlement. This power is often used to retain the use of the matrimonial home until the children are independent, as well as to retain the parents' financial investment.

marshalling of assets

A process in which the claims of different creditors are directed towards different funds of the same debtor in an attempt to reach a fair result. When there are two creditors and two funds, and one has a claim exclusively on one fund but the other can claim against either fund, the rule of marshalling requires the latter to claim against the fund from which the former is excluded. The aim is, so far as possible, to allocate the assets so as to satisfy all the creditors.

marshalling of securities

An application of *marshalling of assets. If A mortgages two properties to B and then mortgages one of the properties in addition to C (who mayor may not know of B's mortgage) B, as first mortgagee, may obtain his money from whichever mortgaged property he chooses. However, if he chooses to obtain his money from the property mortgaged to C, C may if necessary obtain his money from the other property. This right cannot be exercised when a purchaser has obtained the property without knowing of the facts giving rise to the right to marshal.

Martens clause

A clause that was included in the Hague Conventions of 1899 and 1907 by the Russian delegate, Friedrich von Martens (1845-1909), and has since then been included in many other treaties. It states that anything not proscribed by the regulations of the treaty will be subject to the international law and will therefore not necessarily be permissible; it also allows the regulations of the treaty to keep pace with the consequences of modern developments in warfare.

martial law

Government by the military authorities when the normal machinery of government has broken down as a result of invasion, civil war, or large-scale insurrection. The constitution of the UK does not provide for a declaration (with specified consequences) of martial law; it is no more than a situation capable of arising. While the military authorities are restoring order, their conduct could not be called into question by the ordinary courts of law. After the restoration of order, the legality of their actions would be theoretically capable of examination, but the standards that would be applied by the courts are unknown. Martial law should not be confused with military law (See service law); any courts held by the military authorities to try civilians during a state of martial law would not enjoy the status of courts martial.

master

n.

1. One of the *Masters of the Supreme Court or the Masters of the Bench (See benchers).

2. The person having command or charge of a vessel.

3. Formerly, an *employer.

See also employer and employee.

Master of the Rolls

(MR)

The judge who is president of the Civil Division of the *Court of Appeal. The office is an ancient one and was originally held by the keeper of the public records. Later the holder was a judge of the Court of Chancery and assistant to the Lord Chancellor, with his own court, the Rolls Court. Since 1881 he has been a judge of the Court of Appeal only, but retains important duties in relation to public records. He also admits solicitors to practice.

Masters of the Supreme Court

Inferior judicial officers of the Queen's Bench and Chancery Divisions (*Queen's Bench Division; *Chancery Division) of the High Court. Their principal function is to supervise interim (interlocutory) proceedings (*interim proceedings; *interlocutory proceedings) in litigation and (especially in the Chancery Division) to take accounts. By convention, Chancery Masters are usually solicitors and Queen's Bench Masters are usually barristers. In the provinces a comparable jurisdiction is exercised by *district judges of the High Court.

See also district registry.

matching broker

See stock exchange.

material facts

See statement of case.

maternity leave

See maternity rights.

maternity pay

See maternity rights.

maternity rights

The rights a woman has against her employer when she is absent from work wholly or partly because of her pregnancy or confinement. The current law is contained in the Employment Rights Act 1996 as supplemented by the Maternity and Parental Leave Regulations 1999. The provisions with respect to maternity pay are governed by the Social Security Contributions and Benefits Act 1992 and its supporting regulations. It is possible for an employer to agree contractually to more generous maternity leave provisions than the statutory minimum. There are currently seven statutory rights:

(1) All pregnant employees are entitled to reasonable time off work, with pay, for antenatal care, but an employer is entitled to ask for evidence of appointments. An employee who is unreasonably refused time off may complain to an *employment tribunal.

(2) An employee is entitled not to be dismissed because of pregnancy or any reason connected with it. She is treated as having been unfairly dismissed if the principal reason for the dismissal is that she is pregnant, or that she has given birth, or that she has taken maternity leave.

(3) A pregnant employee who meets certain qualifying conditions based on her length of service and average earnings is entitled to receive statutory maternity pay from her employer for up to 18 weeks (to be increased to 26 weeks from April 2003). To qualify for statutory maternity pay a pregnant employee must have been working for the same employer continuously for at least 26 weeks ending in the 15th week before the week the baby is due, must have been paying national insurance, and must leave work between the 11th and 6th week before the expected date of confinement. If she can satisfy these conditions, she will receive 90% of salary for six weeks followed by a fixed statutory rate for the remaining 12 weeks (set at £75 from April 2002 and £100 from April 2003). An employee who does not qualify for statutory maternity pay but who earns at least £30 per week on average may be entitled to claim the state maternity allowance from the Benefits Agency. Employers can recover 92% of such payments by setting the amount against their national insurance payments. They can require the employee to provide them with evidence of the baby's birth.

(4) An employee who continues to be employed by her employer until the beginning of the 11th week before the expected week of confinement is entitled to maternity leave. All pregnant employees are entitled to at least 18 weeks' maternity leave (to be increased to 26 weeks from April 2003). Additional maternity leave of up to 29 weeks from the actual birth of a child is also available to employees who have completed a minimum of one year's service by the 11th week before the expected week of confinement. An employee must inform her employer, at least 21 days before her absence begins (or as soon as reasonably practicable), that she intends to be absent because of maternity leave and that she intends to return to work (if she wishes to exercise that right); this notice must also state the expected week of confinement, for which she may be required by her employer to produce evidence. Women entitled to additional maternity leave in effect enjoy a maximum of 40 weeks' maternity leave, but this maximum can only be achieved by taking 11 weeks before and 29 weeks after the expected week of confinement.

(5) An employee entitled to maternity leave is also entitled to return to work with her employer after taking such leave, either in the job in which she was employed or in suitable alternative employment, provided that the employer employs more than five people. If a woman wishes to return to work before her statutory maternity leave period has expired she may do so providing she informs her employer 21 days in advance of her proposed return. If the employer refuses to allow her to return, the employee is treated as having been continuously employed up to the intended date of her return and as having been dismissed on that date for the reason for which she was not allowed to return. If she complains to an employment tribunal that she has been unfairly dismissed (See *unfair dismissal), the dismissal will be treated as fair if the employer shows that it was not reasonably practicable to allow her to return, that the dismissal would have been reasonable if she had not been absent, or that in any event she would properly have been made redundant during her absence.

(6) Throughout the maternity leave period the employee is entitled to continue to benefit from all contractual terms of her employment with the exception of remuneration (money payment). These entitlements may include such things as pension contributions from her employer, company car and personal petrol allowance, and private health insurance. The maternity leave period begins either on the date that the employee notifies her employer that she intends to begin her leave (she must give 21 days' notice, or as much notice as is reasonably practicable) or the first day on which she is absent from work because of pregnancy or childbirth, if this date is earlier than the notified date (in which case the employer must be notified of the reason for the absence as soon as is reasonably practicable and this must be in writing if the employer requests it).

(7) Pregnant women, and women who have recently given birth or who are breastfeeding, have the right to be offered any suitable alternative work, rather than being suspended on maternity-related health and safety grounds. If there is no suitable alternative work available and the employee is suspended because of her condition, then she is entitled to receive the same remuneration that she would have received had she not been suspended.

matrimonial causes

See matrimonial proceedings.

matrimonial home

The home in which a husband and wife have lived together. When only one of the spouses owns the matrimonial home the Family Law Act 1996 gives the nonowner certain *matrimonial home rights, which may be enforced by court order (See occupation order). These rights include a right to live in the matrimonial home while still married. They will bind third parties (such as banks and building societies) if they are registered as a Class F land charge (in the case of previously unregistered land) or if they are protected by a notice (in the case of registered land) - See registration of encumbrances. In Scotland similar rights have been granted (for a limited period only) to unmarried cohabitants, under the Matrimonial Homes (Financial Provision) (Scotland) Act 1981. When the legal estate is registered under the Land Registration Act and the wife is in actual occupation, she may also be protected against eviction by a third party if she has an interest in the land, even though she has not registered a notice or caution. Such an interest may be acquired by virtue of her contributions to the mortgage payments or, sometimes, to household expenses, as well as by making improvements in the matrimonial home.

Upon divorce, nullity, or separation the court has wide powers to make orders transferring the matrimonial home from one party to the other or altering their rights in it, in particular to provide for dependent children. County courts and magistrates' courts have powers to grant matrimonial injunctions excluding a spouse from the matrimonial home (See battered spouse or cohabitant) as well as making an order for sale of the matrimonial home in order to redistribute resources.

matrimonial home rights

The rights of a spouse who is not a co-owner of the *matrimonial home to live in the home. A spouse who is in occupation of the home has a right not to be evicted from it, and a spouse who is not in occupation has a right to enter and occupy the home.

See also occupation order.

matrimonial injunctions

See Battered Spouse Or Cohabitant.

matrimonial offence

Misbehaviour, such as adultery, desertion, or cruelty, by a party to a marriage. Formerly (before 1969), proof of matrimonial offences provided grounds for divorce and was important in applications in magistrates' courts for financial relief during the marriage.

matrimonial order

Formerly, an order made by magistrates under the 1960 Matrimonial Proceedings and Magistrates' Courts Act for periodical payments, custody of children, or noncohabitation clauses. However, both the grounds on which magistrates may exercise jurisdiction and the type of orders they may make are now governed by the 1978 Domestic Proceedings and Magistrates' Courts Act.

matrimonial proceedings

(matrimonial causes)

Proceedings for *divorce, *judicial separation, or *nullity of marriage. All matrimonial proceedings must be heard in a divorce county court or the Divorce Registry in London. The proceedings may be transferred from the county court to the High Court, and vice versa, at the court's discretion.

See also family proceedings.

maturity

n.

The time at which a *bill of exchange becomes due for payment. When a bill is payable at a fixed period after date, after sight, or after the happening of a specified event, the date of payment is determined by excluding the day from which the time is to begin to run and including the day of payment. When a bill is payable at a fixed period after sight. the time begins to run from the date of *acceptance if the bill is accepted and from the date of noting or *protest if the bill is noted or protested for nonacceptance.

maxims of equity

Short pithy statements used to denote the general principles that are supposed to run through *equity. Although often inaccurate and subject to exceptions, they are commonly used to justify particular decisions and express some of the basic principles that have guided the development of equity. The main maxims are as follows:

equity acts *in personam;

equity acts on the conscience;

equity aids the vigilant;

equity will not suffer a wrong without a remedy (i.e. equity will not allow a person whom it considers as having a good claim to be denied the right to sue);

equity follows the law (i.e. equity follows the rules of common law unless there is a good reason to the contrary);

equity looks at the intent not at the form (i.e. equity looks to the reality of what was intended rather than the way in which it is expressed);

where the equities are equal, the earlier in time prevails (i.e. where rights are equal in worth or value, the earlier right created takes precedence over the later);

he who seeks equity must do equity;

he who comes to equity must come with *clean hands (See equitable remedies);

*equality is equity: equity looks on that as done which ought to be done (See conversion); equity imputes an intent to fulfil an obligation (See satisfaction); equity will not assist a volunteer (See voluntary settlement).

Mayor of London

The head of the *Greater London Authority, elected every four years by the voters in London; the office was created under the Greater London Authority Act 1999. The responsibilities of the Mayor include the promotion of cultural, economic, and social development and improvement of the London environment by use of strategies to reduce air pollution and waste.

Mayor's and City of London Court

A court formed in 1922 by the amalgamation of the Mayor's Court and the City of London Court. It had an unlimited civil jurisdiction over matters arising within the City. The Court was abolished by the Courts Act 1971, but the name is retained by the *county court for the City of London, which has normal county court jurisdiction.

Measure

n.

See Church of England.

measure of damages

The principle that determines the amount of *damages awarded for a tort or a breach of contract.

mediation

n.

1. A form of *alternative dispute resolution in which an independent third party (mediator) assists the parties involved in a dispute or negotiation to achieve a mutually acceptable resolution of the points of conflict. The mediator, who may be a lawyer or a specially trained nonlawyer, has no decision-making powers and cannot force the parties to accept a settlement. In family law, for example, mediators assist spouses to resolve disputes that have arisen as a consequence of the breakdown of their marriage by reaching agreement or reducing conflict over future arrangements for children or their finances. Mediation, which is designed to avoid the need to take cases to court, is likely to be extended to many other areas of the law since the publication of Lord Woolf's Access to Justice (Final Report) 1996 and the introduction of the *Civil Procedure Rules, in which it is actively encouraged.

2. (in international law) A method for the peaceful settlement of an international dispute in which a third party, acting with the agreement of the disputing states, actively participates in the negotiating process by offering substantive suggestions concerning terms of settlement and, in general, by trying to reconcile the opposing claims and appeasing any feeling of resentment between the parties involved.

See also conciliation; good offices.

Member of Parliament

(MP)

See house of commons.

Members' interests

Interests of Members of Parliament that might affect their conduct as MPs; for example, employments, company directorships, shareholdings, substantial property holdings, and financial sponsorships. By a 1975 resolution of the House, these must be registered for public information. After various allegations of Members not disclosing financial rewards received from outside parties in return for asking questions in the House ("cash for questions"), the rules on disclosure were tightened in 1996, when the Code of Conduct for Members of Parliament with a Guide to the Rules Relating to the Conduct of Members were published.

memorandum in writing

Under former provisions of the Law of Property Act 1925, written evidence of a contract for the sale or other disposition of land or of any interest in it. The Act provided that such a contract could not be enforced unless it, or some memorandum or note evidencing the parties' agreement (identifying the parties, the property, the price, and other essentials), was in writing and signed by the party to be held liable on the contract. In practice, a contract would usually be in writing, but a signed memorandum showing that the parties had been bound from the time of an earlier oral agreement was equally acceptable as evidence to support any claim to enforce the contract.

However, the Law of Property (Miscellaneous Provisions) Act 1989 now insists that such a contract can only be made in writing that sets out in one document (or incorporates by reference to other existing documents) all the terms the parties have expressly agreed; the contract must be signed by both parties. A mere memorandum or note evidencing the terms of the agreement will no longer suffice unless it is incorporated in the contract by reference.

memorandum of association

A constitutional document of a *registered company that must be drawn up by the person(s) wishing to set it up. Under the Companies Act 1985 certain compulsory clauses must be inserted into the memorandum. These clauses deal with and outline the company's identity (names clause); its registered address (registered office clause); the amount of its authorized share *capital (capital clause); the purpose(s) for which the company has been formed (objects clause); and (if applicable) whether it is a *limited company or a *public company. The Companies Act 1985 contains specimen examples of such clauses for different types of company. The memorandum is said to be the "superior constitutional document" of the company; in the event of a conflict between it and the *articles of association, the memorandum prevails.

menace

n.

See threat.

mensa et thoro

See a mensa et thoro.

mens rea

(Latin: a guilty mind)

The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction. Mens rea varies from crime to crime; it is either defined in the statute creating the crime or established by *precedent. Common examples of mens rea are *intention to bring about a particular consequence, *recklessness as to whether such consequences may come about, and (for a few crimes) *negligence. Some crimes require knowledge of certain circumstances as part of the mens rea (for example, the crime of receiving stolen goods requires the knowledge that they were stolen). Some crimes require no mens rea; these are known as crimes of *strict liability. Whenever mens rea is required, the prosecution must prove that it existed at the same time as the *actus reus of the crime (coincidence of actus reus and mens rea). A defendant cannot plead ignorance of the law, nor is a good *motive a defence. He may, however, bring evidence to show that he had no mens rea for the crime he is charged with; alternatively, he may admit that he had mens rea, but raise a general defence (e.g. duress) or a particular defence allowed in relation to the crime.

mental disorder

For the purposes of the Mental Health Act 1983, mental illness, incomplete or *arrested development of mind, *psychopathic disorder, and any other disorder or disability of mind. A person suffering (or appearing to be suffering) from mental disorder can be detained in hospital either for assessment or for treatment. Detention for assessment normally takes place on an application for his admission made by his nearest relative or an approved social worker. This is supported in either case by the recommendation of two doctors that it is desirable in the interests of the patient's own health and safety or for the protection of others. The application authorizes detention for up to 28 days. In a case of emergency, however, detention may be for up to 72 hours on an application supported by one doctor only and made by an approved social worker or the patient's nearest relative. The procedure for detention for treatment is the same as the normal procedure for detention for assessment. The application authorizes detention for six months, renewable for a further six months, initially, and then for periods of one year on a report to the hospital managers by the doctor in charge. Discharge of a person detained may be effected by the managers or the doctor in charge and, within certain limits, the nearest relative; in the case of detention for treatment, discharge may also be directed by a *Mental Health Review Tribunal. The National Health Service and Community Care Act 1990 provided for more care in the community for patients who previously may have been treated in secure hospitals.

See also hospital order; special hospital.

Mental Health Act Commission

A regulatory body established in 1983 to monitor the operation of the Mental Health Act 1983. Its members, appointed by the Secretary of State for Health, include psychiatrists, nurses, lawyers, members of other clinical professions, and lay people. Commissioners are responsible for regularly visiting patients detained under the Act, reviewing psychiatric care, investigating certain complaints, and advising ministers.

Mental Health Review Tribunal

A tribunal, constituted under the Mental Health Act 1983, to which applications may be made for the discharge from hospital of a person detained there for assessment or treatment of *mental disorder or under a *hospital order or a *guardianship order. When a patient is subject to a restriction order or direction an application may only be made after his first six months of detention. Such tribunals include legally and medically qualified members appointed by the Lord Chancellor and are under the supervision of the *Council on Tribunals.

mental impairment

See arrested development.

MEP

Member of the European Parliament.

See European Parliament.

mercantile agent

A commercial *agent who has authority either to sell goods, to consign goods for the purpose of sale, to buy goods, or to raise money on the security of goods on behalf of his principal.

mercenary

n.

A person who is paid to serve with armed forces other than those of the state of which he is a national. British officers undertaking such service (e.g. in Oman) were commonly known as contract officers.

See also foreign enlistment.

merchantable quality

An *implied condition now replaced by *satisfactory quality.

merchant shipping registration

See ship.

mercy

n.

See prerogative of mercy.

mere equity

A right affecting property that is less significant than an *equitable right or a *legal right; it does not affect anyone except the parties to the transaction in which it is contained. An example is the right to rectify a document.

merger

n.

1. An amalgamation between companies of similar size in which either the members of the merging companies exchange their shares for shares in a new company or the members of some of the merging companies exchange their shares for shares in another merging company. It is usually effected by a *takeover bid. Under current EU mergers law, mergers with a Community dimension, i.e. a combined Community-wide turnover of at least 250M euros and a combined worldwide turnover of over 500M euros, must be notified to the EU Mergers Secretariat, However, If each of the merging companies derives two-thirds of its EU business from one and the same member state, the merger does not have to be notified.


Date: 2015-01-29; view: 394


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