TOPIC 1
FORMALITIES AND RECOGNITION OF MARRIAGE AND CIVIL PARTNERSHIP
first topic= marriage and civil partnership
focused on the question OF formalities and recognition of marriage and
civil partnership
What is Marriage? What does the question mean to for Law?
Until the middle of the 18th century marriages could take place
anywhere, provided they were conducted before an ordained clergyman
of the Church of England. This encouraged the practice of secret
marriages, without parental consent and/or bigamous.
The complexity stems from the dual system of religious and civil
preliminaries, dating back to 1836 (which itself dates back to a 1753
statute), coupled with the choice of four different ways to celebrate the
marriage.
marriage as a social institution is a kind of rite of passage into adulthood
showing couples readiness to assume responsibilities of adulthood
for some its home owning
for some it's a child baring
financial interdependence to each other
and financial independence from their parents
also historically marriage was not really about the two individuals, it was
about various clans and groups who wanted to create new affiliations
so it was about power- between groups
it was also more recently seen as the ideal setting to raise children
this is contested- this is what the literature and the discourse was saying
until the last few years
the legal system has always tried to regulate marriage
So what does it mean to ask what is marriage as a legal question?
when we ask what is marriage we implicitly draw a distinction between
what is a valid marriage and a non valid marriage
The issues of formalities and recognition are important because there are
consequences to having a marriage
why laws about formalities?
historically until the 18th century marriage could take place anywhere
provided that there was an ordained clergyman of the Church of England
who could celebrate it
so this allowed for different practises to take place- marriage without
parental consent or bigamous marriage
so the complexity of the system is still with us because there is a dual
system of religious preliminaries and civil preliminaries
, there are different ways for couples to celebrate their marriage
so it's complex, it's technical but it is of significance
PURPOSE OF FORMALITIES
Read and reflect on Herring p. 89:
Draw line between marriage, engagement and
agreement to cohabit
Ensure that parties enter marriage seriously
Helps ensure there is a record of marriages
Offer opportunities for people to object if they wish
What are the risks of having too strict formalities?
The purpose of formalities is to draw the line between marriage,
engagement and an agreement to cohabit
it ensured that the parties enter marriage as an institution seriously
it helps with recordkeeping
and it offers opportunities for people to object if they wish
this happens very rarely but there's a public dimension to it and public
policy
there's also the question not only of what is a valid marriage and
formalities but of capacity
who can marry and what makes a marriage valid or voidable?
in terms of formalities- what is at stake for having formalities?
and for having strict formalities?
it means you can have a situation when someone thinks they are married
but in fact they are not
consequences when they cannot have access to the protection afforded
to a married person
so something of practical significance for people
Demonstrates this:
“A person’s marital status is important for them and for the state. The
status of marriage creates a variety of rights and obligations. It is that
status alone, derived from a valid ceremony of marriage, which creates
these specific rights and obligations and not any other form of
relationship. It is, therefore, of considerable importance that when
parties decide to marry in England and Wales that they, and the state,
know whether what they have done creates a marriage which is
recognised as legally valid. If they might not have done so, they risk being
unable to participate in and benefit from the rights given to a married
person.”
AG v Akhter and Khan (2020)
, Tells us that having a marriage recognised as legally valid is very
important
if people do not comply with the formalities they risk being unable to
participate in and benefit from the rights given to a married person
FORMALITIES OF MARRIAGE AND PARTNERSHIP
3 DISTINCT LEGAL ELEMENTS=
1. preliminaries
2. ceremony
3. registration.
For both opposite-sex and same-sex couples.
Up until last year civil partnership was open only for same sex couples
but now it is open for opposite sex couples as well
PREMILINARIES (1)
1. parental consent if under 18
2. publicising intention to marry (two procedures – Anglican and civil)
the public nature of marriage that's emphasised here
Anglican Preliminaries – Most preliminaries by calling of the banns on 3
consecutive Sundays
Civil Preliminaries – must first obtain superintendent registrar’s
certificate.
Must give notice in person of intention to marry in district where they
live (at least 7 days). Waiting period of 28 days until marriage can be
solemnized (dated from last notice).
waiting a period so that if there is a reason to object public policy or a
reason to object if someone is to raise an issue, then there is a delay
between the intention to marry and the marriage
CIVIL CERAMONY (2)
1 – Civil,
2- Church of England,
3- Jewish and Quaker,
4- according to recognized religion in licensed place of worship.
Civil – may take place in register office or approved premises.
Most popular method of marrying.
Local authority is responsible for granting approval.
Can’t deny same-sex couples.
, Cannot be religious premises.
Must be permanently immovable structures -- open air, tent, marquee
structures are not eligible for approval.
Ceremony itself – must declare free to lawfully marry, call upon
witnesses to view that they take each other. That’s it!
Can include secular music/readings –use of religious service still
prohibited by statute, registrars allow ‘incidental’ religious references.
No bible readings or hymns.
Why? Church wishes religious ceremony to be maintained ‘intact’ and
separate from civil ceremony.
there can be civil ceremony- ceremony under the Church of England
there is a procedure for Jewish and Quaker
and then this generic category according to recognised religion in a
licence place of worship- which covers all other types of religious
weddings which are not civil not Church of England or not Jewish or not
Quaker
so the civil ceremony has to take place in a register office or approved
premises
The place where it happens is important
so it cannot be a religious premise- it has to be in a permanent structure
and the ceremony itself is very simple- must declare free to lawfully
marry, some witnesses
there should not be religious content in the civil ceremony
this is the result of negotiation with church
the church insisted on keeping religious marriage intact and separate
from civil ceremony
So there shouldn't be any prayer or religious him contained in a civil
ceremony
This was at the demand of church authorities who really insisted on
keeping this separate
CHURCH OF ENGLAND, JEWISH, QUAKER CEREMONY
Church of England – Doesn’t matter what religion couple is, though deny
(some) trans people and (all) same-sex couples in England and Wales.
Need ‘qualifying connection’ with parish, broad interpretation.
No specific words required but will use service authorized by church.
Jewish and Quaker weddings - Up to religions concerned. Must comply
with civil preliminaries and be registered.
No law about content or location or who can do it. Up to leaders to
decide about same-sex couples.
FORMALITIES AND RECOGNITION OF MARRIAGE AND CIVIL PARTNERSHIP
first topic= marriage and civil partnership
focused on the question OF formalities and recognition of marriage and
civil partnership
What is Marriage? What does the question mean to for Law?
Until the middle of the 18th century marriages could take place
anywhere, provided they were conducted before an ordained clergyman
of the Church of England. This encouraged the practice of secret
marriages, without parental consent and/or bigamous.
The complexity stems from the dual system of religious and civil
preliminaries, dating back to 1836 (which itself dates back to a 1753
statute), coupled with the choice of four different ways to celebrate the
marriage.
marriage as a social institution is a kind of rite of passage into adulthood
showing couples readiness to assume responsibilities of adulthood
for some its home owning
for some it's a child baring
financial interdependence to each other
and financial independence from their parents
also historically marriage was not really about the two individuals, it was
about various clans and groups who wanted to create new affiliations
so it was about power- between groups
it was also more recently seen as the ideal setting to raise children
this is contested- this is what the literature and the discourse was saying
until the last few years
the legal system has always tried to regulate marriage
So what does it mean to ask what is marriage as a legal question?
when we ask what is marriage we implicitly draw a distinction between
what is a valid marriage and a non valid marriage
The issues of formalities and recognition are important because there are
consequences to having a marriage
why laws about formalities?
historically until the 18th century marriage could take place anywhere
provided that there was an ordained clergyman of the Church of England
who could celebrate it
so this allowed for different practises to take place- marriage without
parental consent or bigamous marriage
so the complexity of the system is still with us because there is a dual
system of religious preliminaries and civil preliminaries
, there are different ways for couples to celebrate their marriage
so it's complex, it's technical but it is of significance
PURPOSE OF FORMALITIES
Read and reflect on Herring p. 89:
Draw line between marriage, engagement and
agreement to cohabit
Ensure that parties enter marriage seriously
Helps ensure there is a record of marriages
Offer opportunities for people to object if they wish
What are the risks of having too strict formalities?
The purpose of formalities is to draw the line between marriage,
engagement and an agreement to cohabit
it ensured that the parties enter marriage as an institution seriously
it helps with recordkeeping
and it offers opportunities for people to object if they wish
this happens very rarely but there's a public dimension to it and public
policy
there's also the question not only of what is a valid marriage and
formalities but of capacity
who can marry and what makes a marriage valid or voidable?
in terms of formalities- what is at stake for having formalities?
and for having strict formalities?
it means you can have a situation when someone thinks they are married
but in fact they are not
consequences when they cannot have access to the protection afforded
to a married person
so something of practical significance for people
Demonstrates this:
“A person’s marital status is important for them and for the state. The
status of marriage creates a variety of rights and obligations. It is that
status alone, derived from a valid ceremony of marriage, which creates
these specific rights and obligations and not any other form of
relationship. It is, therefore, of considerable importance that when
parties decide to marry in England and Wales that they, and the state,
know whether what they have done creates a marriage which is
recognised as legally valid. If they might not have done so, they risk being
unable to participate in and benefit from the rights given to a married
person.”
AG v Akhter and Khan (2020)
, Tells us that having a marriage recognised as legally valid is very
important
if people do not comply with the formalities they risk being unable to
participate in and benefit from the rights given to a married person
FORMALITIES OF MARRIAGE AND PARTNERSHIP
3 DISTINCT LEGAL ELEMENTS=
1. preliminaries
2. ceremony
3. registration.
For both opposite-sex and same-sex couples.
Up until last year civil partnership was open only for same sex couples
but now it is open for opposite sex couples as well
PREMILINARIES (1)
1. parental consent if under 18
2. publicising intention to marry (two procedures – Anglican and civil)
the public nature of marriage that's emphasised here
Anglican Preliminaries – Most preliminaries by calling of the banns on 3
consecutive Sundays
Civil Preliminaries – must first obtain superintendent registrar’s
certificate.
Must give notice in person of intention to marry in district where they
live (at least 7 days). Waiting period of 28 days until marriage can be
solemnized (dated from last notice).
waiting a period so that if there is a reason to object public policy or a
reason to object if someone is to raise an issue, then there is a delay
between the intention to marry and the marriage
CIVIL CERAMONY (2)
1 – Civil,
2- Church of England,
3- Jewish and Quaker,
4- according to recognized religion in licensed place of worship.
Civil – may take place in register office or approved premises.
Most popular method of marrying.
Local authority is responsible for granting approval.
Can’t deny same-sex couples.
, Cannot be religious premises.
Must be permanently immovable structures -- open air, tent, marquee
structures are not eligible for approval.
Ceremony itself – must declare free to lawfully marry, call upon
witnesses to view that they take each other. That’s it!
Can include secular music/readings –use of religious service still
prohibited by statute, registrars allow ‘incidental’ religious references.
No bible readings or hymns.
Why? Church wishes religious ceremony to be maintained ‘intact’ and
separate from civil ceremony.
there can be civil ceremony- ceremony under the Church of England
there is a procedure for Jewish and Quaker
and then this generic category according to recognised religion in a
licence place of worship- which covers all other types of religious
weddings which are not civil not Church of England or not Jewish or not
Quaker
so the civil ceremony has to take place in a register office or approved
premises
The place where it happens is important
so it cannot be a religious premise- it has to be in a permanent structure
and the ceremony itself is very simple- must declare free to lawfully
marry, some witnesses
there should not be religious content in the civil ceremony
this is the result of negotiation with church
the church insisted on keeping religious marriage intact and separate
from civil ceremony
So there shouldn't be any prayer or religious him contained in a civil
ceremony
This was at the demand of church authorities who really insisted on
keeping this separate
CHURCH OF ENGLAND, JEWISH, QUAKER CEREMONY
Church of England – Doesn’t matter what religion couple is, though deny
(some) trans people and (all) same-sex couples in England and Wales.
Need ‘qualifying connection’ with parish, broad interpretation.
No specific words required but will use service authorized by church.
Jewish and Quaker weddings - Up to religions concerned. Must comply
with civil preliminaries and be registered.
No law about content or location or who can do it. Up to leaders to
decide about same-sex couples.
