Topic 1 – Marriage
ONS stats for year ending 2017
- 242,842 marriages of opposite sex couples
o Slightly lower than 2016 & lowest on record
o 1970s figures were around 480,285
- Less than ¼ of marriages in 2017 (22%) were religious ceremonies (in 2016 first time
this happened)
- 6,932 marriages between same-sex couples
o Generally more women than men: 56/44
- 1,072 couples converted civil partnerships to marriages
Patterns
- Estimated that % of married adult population will continue to fall (2033=42%)
- Number of people choosing not to marry continues to rise………..marriage will no
longer be the norm
- Around 9/10 couples cohabit before marriage
- Significant proportion of 2nd or further marriages (just under 1/3rd)
What is a marriage?
Hard to define, with different perspectives on which it can be examined: functional,
psychological, political, legal, religious, cultural, sexual
Case law history –
- Penzance LJ in Hyde v Hyde (1866) ‘the voluntary union for life of one man and one
woman, to the exclusion of all others’
- Thorpe LJ in Bellinger v Bellinger [2001] - ‘a contract for which the parties elect but
which is regulated by the state both in its formation and in its termination by divorce
because it affects status upon which depend a variety of entitlements, benefits and
obligations’
- Millet LJ in Mendoza [2004] – ‘need not be loving, sexual, stable, faithful, long-lasting
or contented’
Status or contract?
- Status
o Rights, obligations and benefits attach to the status of being married
(irrespective of intentions or quality of relationship).
o Legal status? Religious status? Cultural status? Societal status?
- Contract
o Legal contract
o Individual intentions matter & determine the relationship
o But what does this contract entail & what happens if circumstances change?
,Radmacher v. Granatino [2010]:
Married couple entering into prenup agreement
- Baroness Hale –
o ‘Marriage is of course a contract in the sense that each party must agree to
enter into it and once entered both are bound by its legal consequences. But
it is also a status.’
o ‘This means two things. First, the parties are not entirely free to determine all
its legal consequences for themselves. They contract into the package which
the law of the land lays down.’
o ‘Secondly, their marriage also has legal consequences for other people and
for the state’
→ Hale states that marriage is a contractually acquired status (she believes some
consequences flow automatically and some depend on agreement)
Leads us to question where should the emphasis be? (Status or contract?)
- If contract should we be encouraging parties to draw up own marriage contracts?
o Both parties understand that they are entering into something to do with
marriage, whether they are confused about what it is or not
- Does the state have an interest in marriage?
o academics write a lot on this - they believe state should understand issues
around vulnerabilities or address financial implications in termination of a
marriage, but why should it determine how you marry and provide it a
status?
- Should the status of marriage be preserved & protected?
Presumption of marriage
= Man & woman live together, believe themselves to be married and present themselves as
married, the law sometimes presumes they are married. Marriage must be long and
consistent. (normally applies where marriage took place some time ago or abroad & lack of
records) → Legal presumption of marriage unless clear evidence to the contrary
o Chief Adjudication Officer v Bath – teenagers marry then live together and
marry, when they got old there were issues over pension claims as could not
prove marriage but due to length of marriage there was a presumption
o A-M v A-M [2001], Dukali v Lamrani [2012], Al-Saedy v Musawi [2010] –
shorter relationships (7 years) thus said it must be long and consistent
- Presumption can be rebutted with clear evidence
- NOT the same as cohabitees
→ S.55, Family Law Act 1986 – court can make order clarifying the status of the marriage
English law regulates the status of marriage
by regulating the ceremony. It decides
whether you are married or not by the
extent to which you have complied with the
formalities of the marriage ceremony. It
does not look at the quality of your
relationship to decide if you are married or
not.
,Valid marriage
- Some of this is determined by rules regarding void & voidable marriages
- Form and validity
- Complex rules governing legal formalities for marriage
- Marriage Act 1949
o Preliminaries to comply with (consent, notice, objections, waiting time,
special provisions re: immigration)
o Marriage ceremony itself
o Authorized celebrant/registrar and authorized building
o Registration dependent on type of ceremony
- Accidental minor non-compliance = marriage still valid
- English law of marriage = ‘hallmarks’ marriage ceremony (Christian traditionally)
- Currently in consultation on marriage laws as very complicated - Law commission
preparing to publish
- http://www.lawcom.gov.uk/app/uploads/2015/12/Getting_Married_scoping_paper.
pdf
+ preliminary
If you are having civil ceremony
you cannot have religious
service
+ post ceremony registration
Often, Muslim ceremonies are not recognised under English law as they do not comply with
this Act, thus fall under category of non-marriage. Historically, but coming less true now, if
you are from a minority religious group you have to have two ceremonies (one religious,
and one at a registry that complies with English law). Muslim people are forgetting to do the
second registry office marriage.
, Why?
- Distinguishing marriage from more informal relationships.
- Ensuring commitment, seriousness, solemnity
- Ensures a formal & public record
- Provides opportunities to object
Difficulty
- Ceremony must be in a registry office/religious building/approved premises which
has caused many issues
o Disparate regulation of religious groups
o Non-binding religious ceremonies where the building is not approved. 2
ceremonies, or unintended difficulty, or deliberate avoidance
▪ Only 270/1270 mosques registered
o Connection to building – see e.g. BHA (contrast Scotland)
o Can’t get married at home unless special circumstances and you apply for
special licence
o See Law Commission proposals
▪ They say that marriage laws unnecessarily complex & do not reflect
the religious, social and cultural diversity of our society.
▪ https://www.lawcom.gov.uk/law-commission-begins-work-on-
weddings-reform/
→ if marriage is valid, you need divorce to terminate it
Void marriage
- Some semblance of marriage but fundamental flaw
- Marriage never existed (void ab initio) but court does have power to make financial
orders
- S11 MCA 1973
o s11(a)(i): Parties within prohibited degrees
o s11(a)(ii): Either party under 16 years of age
o s11(a)(iii): Parties knowingly & wilfully disregarded formalities (deliberate
non-compliance)
o s11(b)&(d): Already married/polygamous union
- [Gender] – see next week’s lecture on same sex marriage
Marriage Act 1949 as amended by Marriage (Prohibited Degrees of Relationship) Act 1986
Void marriages:
- Consanguinity (blood tie – closest to marry is cousin)
- Affinity (marriage – cannot marry step-child)
o Justified on grounds of Genetics/Security/Morality
▪ B and L v UK [2006] – father-in-law and daughter-in-law challenged
restriction requiring former spouses to be dead. Court found breach
of ECHR Article 12. Restriction removed.
o Step-parent cannot marry step-child UNLESS both aged over 21yrs and step-
child never treated as child of the family whilst under 18.
o Adopted child cannot marry adoptive parents or birth family members.
ONS stats for year ending 2017
- 242,842 marriages of opposite sex couples
o Slightly lower than 2016 & lowest on record
o 1970s figures were around 480,285
- Less than ¼ of marriages in 2017 (22%) were religious ceremonies (in 2016 first time
this happened)
- 6,932 marriages between same-sex couples
o Generally more women than men: 56/44
- 1,072 couples converted civil partnerships to marriages
Patterns
- Estimated that % of married adult population will continue to fall (2033=42%)
- Number of people choosing not to marry continues to rise………..marriage will no
longer be the norm
- Around 9/10 couples cohabit before marriage
- Significant proportion of 2nd or further marriages (just under 1/3rd)
What is a marriage?
Hard to define, with different perspectives on which it can be examined: functional,
psychological, political, legal, religious, cultural, sexual
Case law history –
- Penzance LJ in Hyde v Hyde (1866) ‘the voluntary union for life of one man and one
woman, to the exclusion of all others’
- Thorpe LJ in Bellinger v Bellinger [2001] - ‘a contract for which the parties elect but
which is regulated by the state both in its formation and in its termination by divorce
because it affects status upon which depend a variety of entitlements, benefits and
obligations’
- Millet LJ in Mendoza [2004] – ‘need not be loving, sexual, stable, faithful, long-lasting
or contented’
Status or contract?
- Status
o Rights, obligations and benefits attach to the status of being married
(irrespective of intentions or quality of relationship).
o Legal status? Religious status? Cultural status? Societal status?
- Contract
o Legal contract
o Individual intentions matter & determine the relationship
o But what does this contract entail & what happens if circumstances change?
,Radmacher v. Granatino [2010]:
Married couple entering into prenup agreement
- Baroness Hale –
o ‘Marriage is of course a contract in the sense that each party must agree to
enter into it and once entered both are bound by its legal consequences. But
it is also a status.’
o ‘This means two things. First, the parties are not entirely free to determine all
its legal consequences for themselves. They contract into the package which
the law of the land lays down.’
o ‘Secondly, their marriage also has legal consequences for other people and
for the state’
→ Hale states that marriage is a contractually acquired status (she believes some
consequences flow automatically and some depend on agreement)
Leads us to question where should the emphasis be? (Status or contract?)
- If contract should we be encouraging parties to draw up own marriage contracts?
o Both parties understand that they are entering into something to do with
marriage, whether they are confused about what it is or not
- Does the state have an interest in marriage?
o academics write a lot on this - they believe state should understand issues
around vulnerabilities or address financial implications in termination of a
marriage, but why should it determine how you marry and provide it a
status?
- Should the status of marriage be preserved & protected?
Presumption of marriage
= Man & woman live together, believe themselves to be married and present themselves as
married, the law sometimes presumes they are married. Marriage must be long and
consistent. (normally applies where marriage took place some time ago or abroad & lack of
records) → Legal presumption of marriage unless clear evidence to the contrary
o Chief Adjudication Officer v Bath – teenagers marry then live together and
marry, when they got old there were issues over pension claims as could not
prove marriage but due to length of marriage there was a presumption
o A-M v A-M [2001], Dukali v Lamrani [2012], Al-Saedy v Musawi [2010] –
shorter relationships (7 years) thus said it must be long and consistent
- Presumption can be rebutted with clear evidence
- NOT the same as cohabitees
→ S.55, Family Law Act 1986 – court can make order clarifying the status of the marriage
English law regulates the status of marriage
by regulating the ceremony. It decides
whether you are married or not by the
extent to which you have complied with the
formalities of the marriage ceremony. It
does not look at the quality of your
relationship to decide if you are married or
not.
,Valid marriage
- Some of this is determined by rules regarding void & voidable marriages
- Form and validity
- Complex rules governing legal formalities for marriage
- Marriage Act 1949
o Preliminaries to comply with (consent, notice, objections, waiting time,
special provisions re: immigration)
o Marriage ceremony itself
o Authorized celebrant/registrar and authorized building
o Registration dependent on type of ceremony
- Accidental minor non-compliance = marriage still valid
- English law of marriage = ‘hallmarks’ marriage ceremony (Christian traditionally)
- Currently in consultation on marriage laws as very complicated - Law commission
preparing to publish
- http://www.lawcom.gov.uk/app/uploads/2015/12/Getting_Married_scoping_paper.
+ preliminary
If you are having civil ceremony
you cannot have religious
service
+ post ceremony registration
Often, Muslim ceremonies are not recognised under English law as they do not comply with
this Act, thus fall under category of non-marriage. Historically, but coming less true now, if
you are from a minority religious group you have to have two ceremonies (one religious,
and one at a registry that complies with English law). Muslim people are forgetting to do the
second registry office marriage.
, Why?
- Distinguishing marriage from more informal relationships.
- Ensuring commitment, seriousness, solemnity
- Ensures a formal & public record
- Provides opportunities to object
Difficulty
- Ceremony must be in a registry office/religious building/approved premises which
has caused many issues
o Disparate regulation of religious groups
o Non-binding religious ceremonies where the building is not approved. 2
ceremonies, or unintended difficulty, or deliberate avoidance
▪ Only 270/1270 mosques registered
o Connection to building – see e.g. BHA (contrast Scotland)
o Can’t get married at home unless special circumstances and you apply for
special licence
o See Law Commission proposals
▪ They say that marriage laws unnecessarily complex & do not reflect
the religious, social and cultural diversity of our society.
▪ https://www.lawcom.gov.uk/law-commission-begins-work-on-
weddings-reform/
→ if marriage is valid, you need divorce to terminate it
Void marriage
- Some semblance of marriage but fundamental flaw
- Marriage never existed (void ab initio) but court does have power to make financial
orders
- S11 MCA 1973
o s11(a)(i): Parties within prohibited degrees
o s11(a)(ii): Either party under 16 years of age
o s11(a)(iii): Parties knowingly & wilfully disregarded formalities (deliberate
non-compliance)
o s11(b)&(d): Already married/polygamous union
- [Gender] – see next week’s lecture on same sex marriage
Marriage Act 1949 as amended by Marriage (Prohibited Degrees of Relationship) Act 1986
Void marriages:
- Consanguinity (blood tie – closest to marry is cousin)
- Affinity (marriage – cannot marry step-child)
o Justified on grounds of Genetics/Security/Morality
▪ B and L v UK [2006] – father-in-law and daughter-in-law challenged
restriction requiring former spouses to be dead. Court found breach
of ECHR Article 12. Restriction removed.
o Step-parent cannot marry step-child UNLESS both aged over 21yrs and step-
child never treated as child of the family whilst under 18.
o Adopted child cannot marry adoptive parents or birth family members.
