Marriage and Civil Partnership

Marriage and Civil Partnership

What is Marriage?

Civil Partnership

Defined in S1 CPA 2004

The classic definition of marriage in English Law is that of Lord Penzance in Hyde v Hyde[1866] "I conceive that marriage, as understood in Christendom may...be defined as the voluntary union for life of one man and one woman to the exclusion of all others."

VOLUNTARY, FOR LIFE, MONOGAMOUS

Voidable Marriages

The differences between a void marriage and a voidable marriage.

It is important to distinguish a marriage that is voidable from a marriage that is void.

Who Can Marry Whom?

The Matrimonial Causes Act 1973

Sections of the Statute

S1(2)(a) MCA

S44(5) CPA lists the facts and adultery is not included

S12(a) and (b) MCA

S50(1) CPA lists the grounds and non-consummation is not included

S12(e) MCA

S50(1) CPA lists the grounds and venereal disease is not included

Differences between marriage & CP

Adultery is a fact that can be used to establish the grounds for a divorce.

Adultery is not a fact that can be used to establish the ground for dissolution.

Non-consummation can be a ground for rendering a marriage voidable.

Non-consummation cannot be a ground for rendering a CP voidable.

The fact that the respondent has a venereal disease can render a marriage voidable.

The fact that the respondent has a veneral disease cannot render a civil partnership voidable.

Section 11 sets out which marriages are void:

• Marriages between people within the prohibited degrees of relationship (e.g. brother & sister)
• either of the parties is under 16
• either of the parties is married to someone else. If they were previously married but the marriage has ended through death or divorce, they are free to marry;
• the parties are of the same sex.

Voidable Marriage

The marriage can only

be set aside if there is a

court order. Without a

court order anulling the

marriage, it is a valid one

Only the parties to the

marriage can apply to

have a voidable marriage

anulled

A child born to a couple

in a voidable marriage is

not 'illegitimate'

Civil Partnerships were created by the Civil Partnership Act 2004. They are only available to people of the same sex. See s3 CPA 2004 states when two people may not be eligible.

Civil partnerships are marriage in all but name. The Equality Act 2010 allows religious groups to include a civil partnership as part of a religious ceremony which removed a distinction between marriage and civil partnership that used to exist. Although same-sex couples can now have their relationships formalised as civil partnerships, they still cannot marry. To some that means that discrimination continues as why should they not be entitled to the same official recognition? This came before the courts in Wilkinson v Kitzinger (2006). This issue has also been considered recently by the ECtHR in Schalk v Austria (2011).

Void Marriage

The marriage is automatically

void; there is no need to

obtain a court order to say so

Any person can apply to have

a marriage declared void

A child born into a couple in a

void marriage is 'illegitimate'

unless the couple believed their

marriage to be valid. However

illegitimacy has very little

significance in law today.

The parties must be male and female

• The definition of male is that at birth the individual's genital, gonodal and chromosomal characteristics all pointed in the direction of being male. The equivalent is true for female.
• The Gender Recognition Act 2004 enables someone to apply for a Gender Recognition Certificate, which recognises for legal purposes that their sex is that in which they now live.

Lack of Consent

A marriage is voidable if either party did not validly consent to it. The statute lists the kinds of factors that mean that a party did not consent: duress, mistake or unsound mind. Notice that the mistake must be a fundamental one, such as a mistaken identity. It could not include a mistake that you thought your spouse was rich or a good lover but it turned out they were not.

Following Hirani v Hirani (1982) and NS v MI (2006) the court will consider the effect of the threat, rather than the kind of threat. So it doesn't matter that there was a threat of violence, just that the threat had such an impact on the victim that she cannot be taken to have consented to the marriage. Note that the courts have taken no objection to arranged marriage and even if there is family pressure on a person to marry the marriage will not be invalid unless there are very powerful threats.

Forced Marriage

There have been quite a few cases in recent years that have involved forced marriages. See P v R (2003), Re SK (2005), Re SA (2005), Re P (Forced Marriage)(2010). The Forced Marriage (Civil Protection) Act 2007 creates a new section 63A of the Family Law Act 1996 which enables the court to make a forced marriage protection order preventing an illegal forced marriage. An application can be brought by the victim or a relevant third party (e.g. a local authority).

Mental Capacity to marry

The law has a delicate balance to strike. On the one hand if the requirement of mental capacity is too high it will mean that people with mild learning difficulties will not be able to marry. On the other hand set it too low and people with mental health problems may be taken advantage of. See Sheffield CC v E (2005)

Bars to Nullity

Section 13 MCA 1973 sets down the bars to annulling a marriage. If one of these bars operates then even though the applicant may be able to establish one of the voidable grounds, the court will not annul the marriage.

Gender Recognition Act 2004

A useful point to make in exams is that as well as these technical differences the different grounds on which a marriage is void or voidable tell us something about the nature of marriage itself. The grounds on which a marriage is void tell us that there are public policy objections to the marriage, e.g. where one of the couple is under 16. In the case of voidable marriages there is no public policy objection to the marriage but there is a major flaw that if it bothers either of the parties, should entitle them to have it annulled e.g. non-consummation. If asked about what the law thinks is important about marriage making this point is a useful way of starting your essay.

The act enables people to apply for a Gender Recognition Certificate so that his or her legal sex will be the 'acquired gender.' See section 2 (1)

Once a Gender Recognition Certificate is issued, the person's acquired gender is his or her gender for all purposes (section 9). It is not necessary for a person to have received surgery in order to obtain a certificate.

The provisions in the Gender Recognition Act that deal with people who are married but wish to apply for a gender recognition certificate are complex and often misunderstood. It is not possible for a married person to obtain a full gender recognition certificate. A spouse can only apply for an interim one which will not alter the definition of their sex. When an interim gender recognition certificate is issued this allows either party to have the marriage anulled (section 12(g) MCA 1973). If the marriage is annulled the Interim Gender Recognition Certificate becomes a full one and the individual is free to enter a marriage or civil partnership in accordance with his/her new sex.

If one spouse has an Interim Gender Recognition Certificate, the couple can remain married but the 'new sex' will not be legally recognised for fear it would create a same-sex marriage.

Cohabitants

There are no formal requirements to start or end cohabitation!

The court has no power to order maintenance to cohabitants nor redistribute property (although orders can be made in respect of children)

There is no obligation for a cohabitant to support the other financially

A man who is not married to the mother of his child will not automatically gain parental responsibility but may acquire it by other means

When someone dies without a will, his/her cohabitant will not inherit anything automatically

There are no tax advantages for unmarried couples

Marriage or CP

To enter or end a marriage or CP, formality requirements must be met.

At the end of a marriage or CP, the court has extensive powers to redistribute the couple's property and make maintenance orders.

During marriage one spouse can seek financial support from the other (see e.g. Domestic Proceedings and Magistrates Courts Act 1978)

A father who is married to the mother of his child will automatically obtain PR

When someone dies without a will, his/her spouse will automatically inherit all or most of the deceased's estate

There are tax benefits for spouses, particularly in relation to Capital Gains Tax or Inheritance Tax

Grounds on which a marriage may be voidable

All in MCA 1973 section 12. Most of these are self explanatory however more complicated ones will be discussed.

Non-consummation

Consummation is vaginal intercourse. The fact that contraception is used does not prevent there being consummation but there must be penile penetration.

Notice that for a marriage to be annulled it is not enough just to show that the marriage has not been consummated. It must be shown that this is due to the incapacity of either party or the willful refusal of the respondent. You cannot rely on your own willful refusal to consummate in order to annul a marriage.

Marrying for bad reasons

The law does not inquire as to why people are marrying. There is no legal requirement for them to be in love. In New Zealand two students married to get better student loans and the marriage was upheld. English and Welsh courts will be unwilling to bar people legally entitled to marry from doing so because they are acting from questionable motives R (on the application of the CPS) v Registrar General [2003] QB 1222 (CA)