Family: L1 – Marriage and Civil Partnership
Definition of Marriage:
There is no statutory definition.
Case Law definition - Hyde v Hyde (1865-1869) LR 1 PD 130 (at p 133):
“voluntary union for life of one man and one woman to the exclusion of all others”
- Voluntary = not forced
- For life = does that mean that it can’t be dissolved? Looks to the intention that
when you get married, you are not looking to get divorced.
- One man and one woman = until very recently same sex marriage was not legal,
only became legal in 2013 in the UK
- Exclusion of all others = only 2 people can form a marriage. You can only be
married to 1 person.
Defined marriage as a contract - Bellinger v Bellinger [2001] EWCA Civ 1140
(Thorpe LJ para 128): “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”
- There is a mixture of contract and status:
- Contract - legal consequences agreed between parties, according to their
intentions
- Status - set of legal consequences, regardless of the intentions of the parties
- Consequences - Maintenance obligations, Inheritance on intestacy
A right to Marry:
Art12 ECHR - “Men and women of marriageable age have the right to marry and to
found a family, according to the national laws governing the exercise of this right.”
Art establishes the right but leaves it to the national laws to regulate.
Legitimate restrictions:
- Parties of opposite sex
- Minimum age – left to be defined by the national state
- Other requirements under national law
Case applying Art12:
Khan v UK (1986) 48 DR 253: Islamic marriage with girl under 16 found void +
criminal penalties for sexual intercourse. Complaint: prevented from manifesting his
religion through his Islamic marriage. Held: Case failed. A minimum matrimonial age is
compatible with Art12 even where the individual’s religion allows for marriage at a lower
age.
- Marriage is not simply a form of expression of conscience or religion – is an
institution in which the state has an interest because it has a public relevance. It
is the state’s responsibility to make sure people are enter a marriage are free and
there is informed consent.
Engagement to marry:
Before you could be sued if they didn’t go ahead with the marriage.
Changed the law - s1 Law Reform (Miscellaneous Provisions) Act 1970 –
established that engagement not enforceable as a contract
- Wrong to push people into marriage because they didn’t want to get sued.
- Rationale? Does engagement retain any legal significance? A symbolic step a
couple takes.
, Property and gifts between engaged couples in the event of termination of engagement:
Gifts: s3 Law Reform (Miscellaneous Provisions) Act 1970 – distinguishes
between gifts conditional upon marriage vs unconditional gifts
- (1) A party may recover property given on the condition (express or implied) that it
shall be returned if the agreement is terminated.
- (2) The engagement ring is presumed to be an absolute gift;
> Presumption rebutted by proving it was given on the condition (express or
implied) that the recipient returns if the marriage does not take place/ if it is a
family ring.
Property: s2(1) Law Reform (Miscellaneous Provisions) Act 1970 refers to s37
Matrimonial Proceedings and Property Act 1970 and extends it to apply to
engaged couples:
- If a spouse makes a substantial contribution in money/ money’s worth to the
improvement of property - party treated as having acquired a (or an enlarged)
share in the beneficial interest.
- This doesn’t apply to co-habitants.
Engaged couples and domestic violence:
Part IV Family Law Act 1996
Engaged couples are ‘associated persons’
Can apply for non-molestation orders against one another
Non-molestation order - an order for which the court orders an abuser to leave the V
alone.
Contracting a valid marriage:
Requirements for marriage:
1. Capacity to Marry
2. Formalities of Marriage
Capacity to marry - Requirements:
a. Not within prohibited degrees of relationship (too close too you in your
family that you cannot marry – EG: brother, mother)
b. Age: over 16
c. Neither party married
- Until 2013 there was a further requirement:
d. Respectively male and female - repealed by Marriage (Same-Sex Couples)
Act 2013
Adoption and restrictions on marriage:
- An adoptive parent cannot marry an adoptive child.
- An adoptive child can marry other relations deriving from adoption.
- Although adoption ends the relationship between adopted child and his/ her birth
parents, the bar still applies.
Capacity to Marry
Not within prohibited degrees of relationship:
Marriage Act 1949 s1 & Sch1 - Restrictions based on 2 groups of relations:
- Consanguinity – blood relatives: s1(1) MA 1949
> Marrying relatives is morally wrong and if you do, your offspring are more
likely to be disabled.
> Relationships subject to the bar (MA 1949 Sch1 Part 1)
Definition of Marriage:
There is no statutory definition.
Case Law definition - Hyde v Hyde (1865-1869) LR 1 PD 130 (at p 133):
“voluntary union for life of one man and one woman to the exclusion of all others”
- Voluntary = not forced
- For life = does that mean that it can’t be dissolved? Looks to the intention that
when you get married, you are not looking to get divorced.
- One man and one woman = until very recently same sex marriage was not legal,
only became legal in 2013 in the UK
- Exclusion of all others = only 2 people can form a marriage. You can only be
married to 1 person.
Defined marriage as a contract - Bellinger v Bellinger [2001] EWCA Civ 1140
(Thorpe LJ para 128): “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”
- There is a mixture of contract and status:
- Contract - legal consequences agreed between parties, according to their
intentions
- Status - set of legal consequences, regardless of the intentions of the parties
- Consequences - Maintenance obligations, Inheritance on intestacy
A right to Marry:
Art12 ECHR - “Men and women of marriageable age have the right to marry and to
found a family, according to the national laws governing the exercise of this right.”
Art establishes the right but leaves it to the national laws to regulate.
Legitimate restrictions:
- Parties of opposite sex
- Minimum age – left to be defined by the national state
- Other requirements under national law
Case applying Art12:
Khan v UK (1986) 48 DR 253: Islamic marriage with girl under 16 found void +
criminal penalties for sexual intercourse. Complaint: prevented from manifesting his
religion through his Islamic marriage. Held: Case failed. A minimum matrimonial age is
compatible with Art12 even where the individual’s religion allows for marriage at a lower
age.
- Marriage is not simply a form of expression of conscience or religion – is an
institution in which the state has an interest because it has a public relevance. It
is the state’s responsibility to make sure people are enter a marriage are free and
there is informed consent.
Engagement to marry:
Before you could be sued if they didn’t go ahead with the marriage.
Changed the law - s1 Law Reform (Miscellaneous Provisions) Act 1970 –
established that engagement not enforceable as a contract
- Wrong to push people into marriage because they didn’t want to get sued.
- Rationale? Does engagement retain any legal significance? A symbolic step a
couple takes.
, Property and gifts between engaged couples in the event of termination of engagement:
Gifts: s3 Law Reform (Miscellaneous Provisions) Act 1970 – distinguishes
between gifts conditional upon marriage vs unconditional gifts
- (1) A party may recover property given on the condition (express or implied) that it
shall be returned if the agreement is terminated.
- (2) The engagement ring is presumed to be an absolute gift;
> Presumption rebutted by proving it was given on the condition (express or
implied) that the recipient returns if the marriage does not take place/ if it is a
family ring.
Property: s2(1) Law Reform (Miscellaneous Provisions) Act 1970 refers to s37
Matrimonial Proceedings and Property Act 1970 and extends it to apply to
engaged couples:
- If a spouse makes a substantial contribution in money/ money’s worth to the
improvement of property - party treated as having acquired a (or an enlarged)
share in the beneficial interest.
- This doesn’t apply to co-habitants.
Engaged couples and domestic violence:
Part IV Family Law Act 1996
Engaged couples are ‘associated persons’
Can apply for non-molestation orders against one another
Non-molestation order - an order for which the court orders an abuser to leave the V
alone.
Contracting a valid marriage:
Requirements for marriage:
1. Capacity to Marry
2. Formalities of Marriage
Capacity to marry - Requirements:
a. Not within prohibited degrees of relationship (too close too you in your
family that you cannot marry – EG: brother, mother)
b. Age: over 16
c. Neither party married
- Until 2013 there was a further requirement:
d. Respectively male and female - repealed by Marriage (Same-Sex Couples)
Act 2013
Adoption and restrictions on marriage:
- An adoptive parent cannot marry an adoptive child.
- An adoptive child can marry other relations deriving from adoption.
- Although adoption ends the relationship between adopted child and his/ her birth
parents, the bar still applies.
Capacity to Marry
Not within prohibited degrees of relationship:
Marriage Act 1949 s1 & Sch1 - Restrictions based on 2 groups of relations:
- Consanguinity – blood relatives: s1(1) MA 1949
> Marrying relatives is morally wrong and if you do, your offspring are more
likely to be disabled.
> Relationships subject to the bar (MA 1949 Sch1 Part 1)
