01 MARRIAGE, CIVIL PARTNERSHIP & CONCEPTIONS OF THE FAMILY
Conceptions of the family: Defining the family
1. The traditional & conservative approach
“Ordinary person” test: “What would an ordinary person characterise the relationship
as?” (Sefton Holdings v Cairns)
Requires “a broadly recognisable de facto familial nexus” (Ross v Collins)
The court looks for signposts (e.g. a permanent sexual relationship, shared obligations
& responsibilities, presence of children, how family & friends treat the household)
Not necessary to tick all factors, but should at least fulfil some (Kimber v Kimber)
2. The emergence of a more liberal attitude
CPA 2004: Recognises civil partnership as an alternative institution to marriage
GRA 2004: Allows the application of a gender recognition certificate
M(SSC)A 2013: Recognises same-sex marriage
Marriage
3. General principles
Right to marry: A human right under ECHR art 12
Capacity to marry
Marriage involves a “voluntary union” (Hyde v Hyde)
Test: Whether a person is able to understand the nature of the marriage
contract, & whether he is mentally capable of understanding the duties &
responsibilities that normally attach to marriage (Re E)
The HC’s inherent jurisdiction can be invoked to protect vulnerable adults who
lack the capacity to marry but who may be at risk of being forced into a
marriage (York CC v C)
Lack of capacity / consent only renders a marriage voidable, not void
(Westminster CC v C)
Formalities requirements (MA 1949)
The legal formalities differ depending on whether the marriage is civil / religious
Civil marriages must take place in a register office / on approved
premises
Religious marriages must take place within a registered place of
religious worship; Religion is not confined to faiths involving a supreme
deity (R (Hodkin & Anor) – Scientology was held to constitute a religion)
Recognition of an overseas marriage
A marriage contracted in a foreign country is recognised as valid in the UK
provided each party had the capacity to marry according to their place of
domicile & the formalities required by the law of the place where the marriage
was celebrated were complied with However, it is subject to the overriding
rule that an oversea marriage will not be recognised in the UK if it is manifestly
unjust / contrary to public policy
Legal consequence: In the case of a void marriage / voidable marriage, the petitioner
is entitled to a decree of nullity & so is able to invoke the powers of the court to make
financial orders (MCA 1973 ss 21(1), 42(10))
1
,Marriage: Void marriage
4. General principles
Where the marriage was entered into in which the required formalities were
knowingly / wilfully disregarded by the parties (MA 1949 s 49)
5. Grounds on which a marriage would be void (MCA 1973 s 11)
Where it falls within the prohibited degrees of relationship (MCA 1973 s 11(a)(i))
List of the prohibited degrees of relationship (MA 1949 sched 1)
Where 1 of the parties is a minor child of the family, the parties may be guilty of
a familial child sex offence under Sexual Offences Act 2003 ss 25-29
Where either party is under the age of 16 (MCA 1973 s 11(a)(ii); MA 1949 s 2)
If a party is aged 16 but under 18, the consent of certain persons is required as
a preliminary formality (MA 1949 s 3) The absence of parental consent does
not render a marriage void although it does mean that the celebrant can refuse
to marry the couple
Where there is a failure to comply with the required formalities (MCA 1973 s 11(a)(iii))
The presumption of marriage at common law
o Arises where a couple believe in the validity of their marriage, hold
themselves as a married couple & cohabit as a married couple for a
substantial period of time (AM v AM; MA v JA)
o Can only be rebutted by clear evidence to the contrary (Assad v Kurter;
Mahadervan v Mahadervan; Hayatleh v Mofdy)
Where either the parties to the marriage was already lawfully married / a civil partner
(MCA 1973 s 11(b))
A person who enters in a subsequent marriage, without the previous marriage
being terminated by annulment / divorce / death, may commit the offence of
bigamy (OAPA 1861 s 57)
Where in the case of a polygamous marriage entered into outside England & Wales,
either party was at the time of the marriage domiciled in England & Wales (MCA 1973
s 11(d))
6. “Non-marriage”
Where there is a fundamental failure to comply with the required formalities
(Berthiaume v Dastous), such that it cannot even be considered a void marriage
Relevant factors (non-exhaustive) (Hudson v Leigh)
Whether the marriage / event set out / purported to be a lawful marriage
Whether it bore all / enough of the hallmarks of marriage
Whether the 3 key participants (bride, bridegroom, officiating official) believed,
intended & understood the ceremony as giving rise to the status of lawful
marriage
The reasonable perceptions, understandings & beliefs of those in attendance
Case law post-Hudson v Leigh
In 2012
El Gamal v Al Maktoum – A ceremony held in a flat with minimal steps
taken to comply with the formalities requirements was held to be a non-
marriage, in spite of the wife’s belief in & intent to create a valid
marriage
Dukali v Lamrani – A ceremony in the Moroccan consulate involving
manifold non-compliance with the formalities requirements was held to
be a non-marriage, in spite of the genuine & arguably reasonable belief
of all concerned that a valid marriage was being created
2
, MA v JA – A Muslim ceremony which the couple expected & intended
to create a lawful marriage, & which involved a registered mosque, the
presence of an authorised person & 2 witnesses was held to be a valid
marriage, in spite of the imam’s knowledge that it did not comply with
the requirements for a lawful marriage
However, Akhter v Khan (appeal outstanding) may operate to render the
marriage void instead where it falls within MCA 1973 s 11(a)(iii) as a marriage
entered into in disregard of certain requirements A problematic decision
which seems incompatible with the position developed in the 2012 case law
7. Reform: Calls for reform
Government’s Green Paper (2018): The Government is prepared to “explore the legal
& practical challenges of limited reform relating to the law on marriage & religious
weddings”
Law Com: The Law Com has begun a 2-year review of the law governing weddings
Marriage: Voidable marriage
8. General principles
A valid & subsisting marriage unless & until it is annulled by the court
Can only be annulled during the lifetime of both parties & only the parties to the
marriage can petition for a decree
9. Grounds on which a marriage would be voidable (MCA 1973 s 12)
Where it has not been consummated (MCA 1973 s 12(1)(a-b)
Sexual intercourse for the purposes of consummation must be “ordinary &
complete, & not partial & imperfect” (DE v AG)
May arise in 2 ways
Incapacity (MCA 1973 s 12(1)(a))
o Must be permanent & incurable (SY v SY)
o Includes not only physical incapacity, but also “an invincible
repugnance to the respondent due to a psychiatric / sexual
aversion” (Singh v Singh; G v G)
Wilful refusal (MCA 1973 s 12(1)(b))
o A “settled & definite decision not to consummate without just
excuse” must be established (Horton v Horton; A v J – Refusal
to organise a religious ceremony was said to be refusal to
consummate)
Where either party to the marriage did not validly consent to it, whether for reason of
duress / mistake / unsoundness of mind / otherwise (MCA 1973 s 12(1)(c))
Test for duress: 2 different views
Objective test: Whether there was a “genuine & reasonably held fear
caused by threat of immediate danger … to life / limb / liberty, so that
the constraint destroys the reality of consent to ordinary wedlock”
(Szechter v Szechter)
Subjective test: Whether “the pressure … is such as to destroy the
reality of consent & overbear the will of the individual” (CA in Hirani v
Hirani – Parents threatened that they would disown the girl if she didn’t
go through with the marriage was held to satisfy the test)
3
Conceptions of the family: Defining the family
1. The traditional & conservative approach
“Ordinary person” test: “What would an ordinary person characterise the relationship
as?” (Sefton Holdings v Cairns)
Requires “a broadly recognisable de facto familial nexus” (Ross v Collins)
The court looks for signposts (e.g. a permanent sexual relationship, shared obligations
& responsibilities, presence of children, how family & friends treat the household)
Not necessary to tick all factors, but should at least fulfil some (Kimber v Kimber)
2. The emergence of a more liberal attitude
CPA 2004: Recognises civil partnership as an alternative institution to marriage
GRA 2004: Allows the application of a gender recognition certificate
M(SSC)A 2013: Recognises same-sex marriage
Marriage
3. General principles
Right to marry: A human right under ECHR art 12
Capacity to marry
Marriage involves a “voluntary union” (Hyde v Hyde)
Test: Whether a person is able to understand the nature of the marriage
contract, & whether he is mentally capable of understanding the duties &
responsibilities that normally attach to marriage (Re E)
The HC’s inherent jurisdiction can be invoked to protect vulnerable adults who
lack the capacity to marry but who may be at risk of being forced into a
marriage (York CC v C)
Lack of capacity / consent only renders a marriage voidable, not void
(Westminster CC v C)
Formalities requirements (MA 1949)
The legal formalities differ depending on whether the marriage is civil / religious
Civil marriages must take place in a register office / on approved
premises
Religious marriages must take place within a registered place of
religious worship; Religion is not confined to faiths involving a supreme
deity (R (Hodkin & Anor) – Scientology was held to constitute a religion)
Recognition of an overseas marriage
A marriage contracted in a foreign country is recognised as valid in the UK
provided each party had the capacity to marry according to their place of
domicile & the formalities required by the law of the place where the marriage
was celebrated were complied with However, it is subject to the overriding
rule that an oversea marriage will not be recognised in the UK if it is manifestly
unjust / contrary to public policy
Legal consequence: In the case of a void marriage / voidable marriage, the petitioner
is entitled to a decree of nullity & so is able to invoke the powers of the court to make
financial orders (MCA 1973 ss 21(1), 42(10))
1
,Marriage: Void marriage
4. General principles
Where the marriage was entered into in which the required formalities were
knowingly / wilfully disregarded by the parties (MA 1949 s 49)
5. Grounds on which a marriage would be void (MCA 1973 s 11)
Where it falls within the prohibited degrees of relationship (MCA 1973 s 11(a)(i))
List of the prohibited degrees of relationship (MA 1949 sched 1)
Where 1 of the parties is a minor child of the family, the parties may be guilty of
a familial child sex offence under Sexual Offences Act 2003 ss 25-29
Where either party is under the age of 16 (MCA 1973 s 11(a)(ii); MA 1949 s 2)
If a party is aged 16 but under 18, the consent of certain persons is required as
a preliminary formality (MA 1949 s 3) The absence of parental consent does
not render a marriage void although it does mean that the celebrant can refuse
to marry the couple
Where there is a failure to comply with the required formalities (MCA 1973 s 11(a)(iii))
The presumption of marriage at common law
o Arises where a couple believe in the validity of their marriage, hold
themselves as a married couple & cohabit as a married couple for a
substantial period of time (AM v AM; MA v JA)
o Can only be rebutted by clear evidence to the contrary (Assad v Kurter;
Mahadervan v Mahadervan; Hayatleh v Mofdy)
Where either the parties to the marriage was already lawfully married / a civil partner
(MCA 1973 s 11(b))
A person who enters in a subsequent marriage, without the previous marriage
being terminated by annulment / divorce / death, may commit the offence of
bigamy (OAPA 1861 s 57)
Where in the case of a polygamous marriage entered into outside England & Wales,
either party was at the time of the marriage domiciled in England & Wales (MCA 1973
s 11(d))
6. “Non-marriage”
Where there is a fundamental failure to comply with the required formalities
(Berthiaume v Dastous), such that it cannot even be considered a void marriage
Relevant factors (non-exhaustive) (Hudson v Leigh)
Whether the marriage / event set out / purported to be a lawful marriage
Whether it bore all / enough of the hallmarks of marriage
Whether the 3 key participants (bride, bridegroom, officiating official) believed,
intended & understood the ceremony as giving rise to the status of lawful
marriage
The reasonable perceptions, understandings & beliefs of those in attendance
Case law post-Hudson v Leigh
In 2012
El Gamal v Al Maktoum – A ceremony held in a flat with minimal steps
taken to comply with the formalities requirements was held to be a non-
marriage, in spite of the wife’s belief in & intent to create a valid
marriage
Dukali v Lamrani – A ceremony in the Moroccan consulate involving
manifold non-compliance with the formalities requirements was held to
be a non-marriage, in spite of the genuine & arguably reasonable belief
of all concerned that a valid marriage was being created
2
, MA v JA – A Muslim ceremony which the couple expected & intended
to create a lawful marriage, & which involved a registered mosque, the
presence of an authorised person & 2 witnesses was held to be a valid
marriage, in spite of the imam’s knowledge that it did not comply with
the requirements for a lawful marriage
However, Akhter v Khan (appeal outstanding) may operate to render the
marriage void instead where it falls within MCA 1973 s 11(a)(iii) as a marriage
entered into in disregard of certain requirements A problematic decision
which seems incompatible with the position developed in the 2012 case law
7. Reform: Calls for reform
Government’s Green Paper (2018): The Government is prepared to “explore the legal
& practical challenges of limited reform relating to the law on marriage & religious
weddings”
Law Com: The Law Com has begun a 2-year review of the law governing weddings
Marriage: Voidable marriage
8. General principles
A valid & subsisting marriage unless & until it is annulled by the court
Can only be annulled during the lifetime of both parties & only the parties to the
marriage can petition for a decree
9. Grounds on which a marriage would be voidable (MCA 1973 s 12)
Where it has not been consummated (MCA 1973 s 12(1)(a-b)
Sexual intercourse for the purposes of consummation must be “ordinary &
complete, & not partial & imperfect” (DE v AG)
May arise in 2 ways
Incapacity (MCA 1973 s 12(1)(a))
o Must be permanent & incurable (SY v SY)
o Includes not only physical incapacity, but also “an invincible
repugnance to the respondent due to a psychiatric / sexual
aversion” (Singh v Singh; G v G)
Wilful refusal (MCA 1973 s 12(1)(b))
o A “settled & definite decision not to consummate without just
excuse” must be established (Horton v Horton; A v J – Refusal
to organise a religious ceremony was said to be refusal to
consummate)
Where either party to the marriage did not validly consent to it, whether for reason of
duress / mistake / unsoundness of mind / otherwise (MCA 1973 s 12(1)(c))
Test for duress: 2 different views
Objective test: Whether there was a “genuine & reasonably held fear
caused by threat of immediate danger … to life / limb / liberty, so that
the constraint destroys the reality of consent to ordinary wedlock”
(Szechter v Szechter)
Subjective test: Whether “the pressure … is such as to destroy the
reality of consent & overbear the will of the individual” (CA in Hirani v
Hirani – Parents threatened that they would disown the girl if she didn’t
go through with the marriage was held to satisfy the test)
3
