S1 / Marriage and Civil Partnership
Required Reading: Jonathan Herring 9th ed, pp. 72-80, p. 137-8 section 15
● “Alison Diduck and Felicity Kaganas have suggested that ‘marriage is both central and
peripheral to family law but arguably remains at the heart of family ideology’. Their
argument is that, while the legal consequences of marriage are limited, the symbolic
nature of marriage still plays an important part as providing an image of what the ideal
family should be.”
● “There are two particular challenges that threaten to limit the legal significance of
marriage even further. First, as marriage has become easier to enter and to exit, any
claim that it is a special relationship deserving of particular respect becomes harder to
maintain. Secondly, there are arguments that those who are unmarried but live together
in many ways like a traditionally married couple should be treated in the same way as a
married couple. These pressures make it harder to claim a unique status for marriage.”
● “Significantly, in 2014, 33% of marriages were second or further marriages for at least
one of the parties. This suggests that there are numbers of people marrying, divorcing
and remarrying who are keeping the numbers of marriages at their present rate. Also of
note is the fact that 72% of marriages were civil ceremonies (i.e. did not take place in a
religious building). Civil marriages first exceeded religious ceremonies in 1976, and have
consistently outnumbered religious marriages every year since 1992. It seems,
therefore, for only a minority of people is marriage a particularly religious matter.”
● “Levels of wealth can significantly affect the likelihood of marriage. Benson (2015) notes
that ‘of mothers with children under five, 87% of those in higher income groups are
married compared to just 24% of those in lower income groups’.”
● “It is impossible to provide a single definition of marriage. Marriage involves a complex
mix of social, legal, religious and personal issues. Indeed, one approach is to say that
one cannot define marriage because marriage is whatever the parties to a marriage take
it to mean. Thus, a Christian couple seeking to base their marriage on biblical principles
may well see their marriage in very different terms from a couple who understand their
marriage to be open and short term, entered into for tax purposes.”
● “In Sheffield CC v E and S , Munby J stated that ‘although we live in a multi-cultural
society of many faiths, it must not be forgotten that as a secular judge my concern . . . is
with marriage as a civil contract, not a religious vow’. This is hardly controversial, but the
fact that Munby J felt it was necessary to say what he did indicates the hold of religion
over the notion of marriage.”
● “A study, looking at why people did not marry, found that the most common reason given
was that people could not afford it (21.8 percent of those questioned).51 The cost of
marriage is also sometimes given as a reason for delaying marriage. One website
suggested that the average cost of marriage was £30,111.52 This will represent many
years’ savings for most couples. A marriage need cost only £46 (the registry office fees),
but the reception, honeymoon, etc. that go along with the modern wedding create
significant additional expense.”
Topic 1 Objectives:
, 1. Identify the various formal requirements for a valid marriage and civil partnership under
English Law.
2. Identify the main criticisms of the present system of formalities and evaluate proposals
for reform.
3. Summarise the distinctions between non-marriages, and void and voidable marriages
and civil partnerships.
4. State the legal rules governing capacity to marriage and civil partnership and apply the
rules to problem scenarios.
5. Consider the various policy issues related to the problem of consent to marriage,
including forced and arranged marriage.
Seminar Questions
1. Consider these quotes:
As a social institution, marriage has been described as representing ‘an idealised rite of
passage into adulthood. It marks a heterosexual couple’s readiness to assume the ‘normal’
responsibilities of adulthood including home-owning, child rearing, legitimate and exclusive
sexual activity and financial independence from parents.’
Alison Diduck and Felicity Kaganas, Family Law, Gender and the State, (3rd edn Hart
Publishing, Oxford, 2012) p. 37.
“Marriage, to those involved in one, can mean a legal tie, a symbol of commitment, a privileged
sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a
social construct, a cultural phenomenon, a religious mandate, an economic relationship, the
preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a
way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a
commitment to traditional notions of morality, a desired status which communicates one’s sexual
desirability to the world, or a purely contractual relationship in which each term is based on
bargaining.”
Martha Fineman, The Autonomy Myth: a Theory of Dependency (The New Press, New York,
London, 2005) at p.99.
● This is not an exhaustive list. The lack of a clear definition of marriage may be a sign of
the times: it reflects the religious, cultural and ethnic diversity within our society.
Review the definitions above and those in Herring’s textbook and identify three elements that
most encapsulate the meaning of marriage to you.
● The happiness of both parties (if a monogamous marriage) whether that be from social,
financial or other gains (like starting a family). It is important that they are at least happy
with each other. Marrying out of convenience is fine. Marrying solely for love is a
contemporary idea.
● Interdependence within the marriage, but also financial independence from parents and
existing family units.
Required Reading: Jonathan Herring 9th ed, pp. 72-80, p. 137-8 section 15
● “Alison Diduck and Felicity Kaganas have suggested that ‘marriage is both central and
peripheral to family law but arguably remains at the heart of family ideology’. Their
argument is that, while the legal consequences of marriage are limited, the symbolic
nature of marriage still plays an important part as providing an image of what the ideal
family should be.”
● “There are two particular challenges that threaten to limit the legal significance of
marriage even further. First, as marriage has become easier to enter and to exit, any
claim that it is a special relationship deserving of particular respect becomes harder to
maintain. Secondly, there are arguments that those who are unmarried but live together
in many ways like a traditionally married couple should be treated in the same way as a
married couple. These pressures make it harder to claim a unique status for marriage.”
● “Significantly, in 2014, 33% of marriages were second or further marriages for at least
one of the parties. This suggests that there are numbers of people marrying, divorcing
and remarrying who are keeping the numbers of marriages at their present rate. Also of
note is the fact that 72% of marriages were civil ceremonies (i.e. did not take place in a
religious building). Civil marriages first exceeded religious ceremonies in 1976, and have
consistently outnumbered religious marriages every year since 1992. It seems,
therefore, for only a minority of people is marriage a particularly religious matter.”
● “Levels of wealth can significantly affect the likelihood of marriage. Benson (2015) notes
that ‘of mothers with children under five, 87% of those in higher income groups are
married compared to just 24% of those in lower income groups’.”
● “It is impossible to provide a single definition of marriage. Marriage involves a complex
mix of social, legal, religious and personal issues. Indeed, one approach is to say that
one cannot define marriage because marriage is whatever the parties to a marriage take
it to mean. Thus, a Christian couple seeking to base their marriage on biblical principles
may well see their marriage in very different terms from a couple who understand their
marriage to be open and short term, entered into for tax purposes.”
● “In Sheffield CC v E and S , Munby J stated that ‘although we live in a multi-cultural
society of many faiths, it must not be forgotten that as a secular judge my concern . . . is
with marriage as a civil contract, not a religious vow’. This is hardly controversial, but the
fact that Munby J felt it was necessary to say what he did indicates the hold of religion
over the notion of marriage.”
● “A study, looking at why people did not marry, found that the most common reason given
was that people could not afford it (21.8 percent of those questioned).51 The cost of
marriage is also sometimes given as a reason for delaying marriage. One website
suggested that the average cost of marriage was £30,111.52 This will represent many
years’ savings for most couples. A marriage need cost only £46 (the registry office fees),
but the reception, honeymoon, etc. that go along with the modern wedding create
significant additional expense.”
Topic 1 Objectives:
, 1. Identify the various formal requirements for a valid marriage and civil partnership under
English Law.
2. Identify the main criticisms of the present system of formalities and evaluate proposals
for reform.
3. Summarise the distinctions between non-marriages, and void and voidable marriages
and civil partnerships.
4. State the legal rules governing capacity to marriage and civil partnership and apply the
rules to problem scenarios.
5. Consider the various policy issues related to the problem of consent to marriage,
including forced and arranged marriage.
Seminar Questions
1. Consider these quotes:
As a social institution, marriage has been described as representing ‘an idealised rite of
passage into adulthood. It marks a heterosexual couple’s readiness to assume the ‘normal’
responsibilities of adulthood including home-owning, child rearing, legitimate and exclusive
sexual activity and financial independence from parents.’
Alison Diduck and Felicity Kaganas, Family Law, Gender and the State, (3rd edn Hart
Publishing, Oxford, 2012) p. 37.
“Marriage, to those involved in one, can mean a legal tie, a symbol of commitment, a privileged
sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfilment, a
social construct, a cultural phenomenon, a religious mandate, an economic relationship, the
preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a
way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a
commitment to traditional notions of morality, a desired status which communicates one’s sexual
desirability to the world, or a purely contractual relationship in which each term is based on
bargaining.”
Martha Fineman, The Autonomy Myth: a Theory of Dependency (The New Press, New York,
London, 2005) at p.99.
● This is not an exhaustive list. The lack of a clear definition of marriage may be a sign of
the times: it reflects the religious, cultural and ethnic diversity within our society.
Review the definitions above and those in Herring’s textbook and identify three elements that
most encapsulate the meaning of marriage to you.
● The happiness of both parties (if a monogamous marriage) whether that be from social,
financial or other gains (like starting a family). It is important that they are at least happy
with each other. Marrying out of convenience is fine. Marrying solely for love is a
contemporary idea.
● Interdependence within the marriage, but also financial independence from parents and
existing family units.
