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FAMILY LAW

SUSSEX LAW
SCHOOL

Marriage,
Civil Partnership
and Cohabitation
Aims of this lecture
i. Understand the difference between formal
marriage and common law marriage
ii. Know what is required for a marriage to be a
marriage
iii. Know when a marriage is void
iv. Understand the rules on nullity
v. Know which rights flow from cohabitation
Defining marriage
The traditional definition
I conceive that marriage, as understood in
Christendom, may be defined as the voluntary union
for life of one man and one woman to the exclusion
of all others
Hyde v Hyde (1866) LR 1 P & D 130
per Lord Penzance
Defining marriage
Problems with the definition:
Christendom?
The advent of the multicultural society and civil
marriage ceremonies
voluntary union
Consent and marriage
for life
The advent of divorce?
Defining marriage
Problems with the definition:
one man and one woman
Same sex marriage
The Civil Partnership Act 2004
Transsexual Marriage
The Gender Recognition Act 2004
to the exclusion of all others
Polygamy & bigamy
Serial polygamy?
Defining marriage
A Modern Definition of Marriage and
Civil Partnership

Marriages and Civil Partnerships are the states
preferred and recognised adult family relationships.
They involve the voluntary formal union for life (or
as long as it lasts) of two people whether of the
same or different sex to the exclusion of all others
Common law marriage
Introduction
Marriage and cohabitation
Formality (notice and officialdom) & Informality
The idea of living together
Commuting relations and living together apart
What is common law marriage?
The church and the covenant of marriage
Two people before God
The social context of the possibility of
informal marriage


Common law marriage
The potential consequences of
common law marriage, if it existed
(or were to exist):
The obligations of marriage
Sexual fidelity
Interdependence
Control of property
Originally, NO dissolution (except by a
decree of nullity); now, divorce
Common Law Marriage
The demise of common law
marriage:
Lord Hardwickes Marriage Act 1753
non-compliance with formalities made
marriage void (Formalities of marriage)
Marriage Act 1823
marriage was only to be void if the technical,
formal defect in the marriage was knowing
and wilful
Types of formal relationships
Marriage
Same Sex Marriage
Marriage (Same Sex Couples) Act 2013
No requirement for religious ceremonies
Civil Partnership
The Civil Partnership Act 2004
Unless it is clear from the context the term
Marriage will (from now on) include Civil
Partnership

Formalities of marriage
Both parties must have capacity to marry
They must consent
No impediments to the marriage(one party is already
married)
Must be registered
Must not fall foul of the grounds in s 11 of the MCA
Has to comply with pre-marriage requirements
~ certificate or banns must be obtained
Non-marriage
The role of law in the context of purported
marriage
Policy considerations:
Why does the state through law need to prescribe a
way of knowing whether or not there is a marriage?
If the attempt to marry is so out of the
ordinary it cannot be regarded as marriage
Hudson v Leigh [2009] EWHC 1306 (Fam)

The ceremony must take a form known to and
recognised by our law as capable of producing a
valid marriage
R v Bham [1966] 1 QB 159

Void marriages
Is a void marriage really:
only an idle ceremony [that] achieves no change in
the status of the participants [and] achieves
nothing of substance?
[Re Spence, deceased, [1990] Ch 652,
per Nourse LJ]
financial provision
the status of the children
Void Marriages: The Grounds
From s 11, Matrimonial Causes Act 1973 (s
49 Civil Partnership Act 2004):
i. the parties are within the prohibited
degrees of relationship;
Concern about incest (X marry uncle)
ii. either party is under the age of sixteen;
The age of sexual consent and the marriage age
iii. the parties have intermarried in disregard
of certain requirements as to the
formation of marriage;
The presumption that formalities have been
observed

Void Marriages: The Grounds
B that at the time of the marriage either
party was already lawfully married or a civil
partner;
Recognising polygamy?

...

D in the case of a polygamous marriage
entered into outside England and
Wales, either party was at the time
of the marriage domiciled in
England and Wales.

Voidable Marriage: The Grounds
From s 12, MCA 1973 (s 50 CPA 2004):
i. incapacity of either party to consummate the
marriage (not applicable to civil partnership or same sex
marriage)
Physical or psychiatric incapacity
Permanent and incurable
ii. wilful refusal of either party to consummate the
marriage (not applicable to civil partnership or same sex
marriage)
settled decision without excuse

Consummation is not required of Civil
Partnerships: this is not a ground for nullity of a
civil partnership or Same Sex Marriage

Voidable Marriage: The Grounds
iii. that either party did not validly consent to it,
whether in consequence of duress, mistake,
unsoundness of mind or otherwise
Capacity to consent
Consent must be real
Duress and mistake affect the reality of consent
iv. either party was suffering from mental disorder
within the meaning of the Mental Health Act
1983 of such a kind or to such extent as to be
unfitted for marriage

Voidable Marriage: The Grounds
v. the respondent was suffering from
venereal disease in a communicable form
at the time of the marriage (NOT for Civil
Partners)
vi. the respondent was pregnant by some
person other than the petitioner at the
time of the marriage (Available for Civil
Partners and Same Sex Marriage)
vii. Gender recognition certificate has been granted
after the marriage

Voidable Marriage: Bars to Nullity
Bars to relief where the marriage is voidable:
approbation
knowledge

3 year period has passed
Cohabitation: some facts
The empirical background:
Increasing unmarried cohabitation
BUT:
Average length of cohabitation is shorter than marriage
Other statistical differences (age, social background, religion,
etc.)
Increased numbers of children born to unmarried parents
Increasing divorce followed by second (unmarried)
relationships
Longevity and the prospect of long relationships
Cost and delay in marrying
Not always a conscious decision ~ drifting

Cohabitation and the law
Extending law to cohabiting relationships:
Succeeding to Statutory Tenancies
Rent Acts (1976 &1977), Housing Acts (1986 & 1988):
Protection from domestic violence
The Family Law Act 1996
Dependants Actions (claims for the unlawful or negligent killing of a
partner)
The Fatal Accidents Act 1976
Sharing Inheritance
Inheritance (Provision for Family and Dependants) Act 1975
Children and their relationships with their parents
The Children Act 1989
Etc.

Law Reform?
No legislative progress in England and Wales since
2007
Government waiting to see what happens in Scotland;
But the courts are on the move
Constructive Trusts are being transformed to take
account of Family Relationships:
Stack v Dowden [2007] UKHL 17
Jones v Kernott [2011] UKSC 53
Developments in Scots law
Gow v Grant [2012] UKSC 29

Summary
i. The difference between a formal marriage and a
common law marriage
ii. Know what is required for a marriage to be a
marriage
iii. Know when a marriage is void
iv. Understand the rules on nullity
v. Know which rights flow from cohabitation

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