Family law (England and Wales)

LECTURE 1

MARRIAGE AND CIVIL PARTNERSHIP

1. Introduction

2. Marriage. The right to marry

3. Civil Partnership

4. Entry into Marriage

5. Entry into a Civil Partnership

6. Void and Voidable Marriages (the Law of Nullity)

7. The Legal Consequences of Marriage and Civil Partnership

1. Introduction

FUNCTIONS: defin­ing and altering status; providing physical protection and economic support; and providing mechanisms for adjusting and dividing property.

One of the distinguishing characteristics of family law is its discretionary nature.

KEY DEFINITION Discretion – being able to decide correctly what should be done

2. Marriage. The right to marry

KEY DEFINITION MARRIAGE is an agreement by which a man and a woman enter into certain legal relationship with each other and which creates and imposes mutual rights and duties.

The parties have capacity if:

1. they are not within the prohibited degrees of relationship;

2. they are both over the age of 16;

3. neither of them is already married or in a civil partnership;

4. one of them is male and the other female.

(a) Not Within the Prohibited Degrees of Relationship

Marriages between certain relatives related by blood or by marriage are prohibited by the Marriage Acts 1949 to 1986. These prohibitions on marriage exist to prevent inbreeding and to discourage incest.

A man is prohibited from marrying his mother, grandmother, daughter, granddaughter, sister, aunt or niece. The same rules apply to a woman in respect of her male relations. There are further restric­tions. Thus, a person can marry a step-child only if both parties are aged 21 or over, and the step-child has not at any time before the age of 18 been brought up by the other party as a step-child.

A man can marry his daughter-in-law only if they are both aged 21 or over, and his wife and son are dead (the same is true for a woman and her son-in-law).

Adopted children are generally in the same degrees of prohibited relationships in respect of their birth parents and other blood relatives, but fewer restrictions apply to relationships acquired by adoption. Thus, for example, a person can marry an adopted brother or sister.

(b) Over the Age of 16

A marriage is void if either party to the marriage is under the age of 16 (s.2 MA 1949; s.11 (a)(ii) MCA 1973).

However, where a party is aged 16 or 17, the following persons must give their consent (s.3 MA 1949): parents; guardians; any person with whom the child lives under a residence order; the local authority; the court's consent is required if the child is a ward of court (s.3(6) MA 1949).

(c) Not Already Married or in a civil partnership

A spouse who remarries without his or her first marriage being terminated commits the crime of bigamy.

(d) Male and Female

KEY DEFINITION Male and female. The definition of male is that at birth the individual's ginital and chromosonal characteristics all pointed in the direction of being male. The equivalent is true for female. Psychological factors are not taken into account. If someone's biological factors at birth are mixed, a court can also consider other factors, including psychological factors that in materialise later in life. The Gender Recognition Act 2004 enables someone to apply for a Gender Recognition Certificate which recognises that for legal purposes their sex is that in which they now live.

Reading: Before 2004 some transsexuals felt that their psychological gender is more important than their biological sex and consider that the law discriminates against them, particularly in respect of formal documentation, such as birth certificates. They also consider that they have a fundamental human right to marry a per­son of the same biological sex. Because of these perceived injustices, trans­sexuals have brought applications under the European Convention for the Protection of Human Rights. In Rees v. United Kingdom (1986) 9 EHRR 56, [1987] 2 FLR 111, a female-to-male transsexual claimed that UK law violated art. 8 (right to a private and family life) by failing to provide measures that would legally constitute him as a male and allow him full integration into social life. He argued that the discrepancy between his apparent and legal sex as stated on his birth certificate caused him embarrassment and humiliation whenever the certificate was required to be produced. Rees also argued that the UK was in breach of art. 12 (right to marry and found a family) as he could not marry a woman. The European Court of Human Rights held by 12 to 3 votes that there had been no breach of art. 8 and unanimously held that there had been no breach of art. 12. Although conscious of the distress suffered by transsexuals, the European Court held that the UK should be left to decide whether it could meet the remaining demands of transsexuals. However, it did state that the need for appropriate legal measures should be kept under review having regard in particular to scientific and societal developments. Rees was endorsed by the Court of Human Rights in Cossey v. United Kingdom [1991] 2 FLR 492 but by less of a majority, which may indi­cate a slight change of attitude since Rees. In B v. France [1992] 2 FLR 249, on the other hand, where the facts were quite different from Rees and Cossey, a French transsexual's application to the European Court of Human Rights was allowed because French bureaucracy was such that it made the daily life of the applicant unbearable.

Another case involving a transsexual was X, Y and Z v. UK [1997] 2 FLR 892. Here a female-to-male transsexual (X) and his partner (Y) had a child (Z) as a result of artificial insemination by donor. X wished to be registered as the father of the child, but this was not permitted under English law as only a bio­logical man could be regarded as the father for the purposes of birth registra­tion. X brought an action against the UK government claiming violations of arts. 8 and 14. His application failed. The European Court of Human Rights, while recognising that 'family life' for the purposes of art. 8 was not confined solely to families based on marriage, held that there was a wide margin of appreciation and that where the community had interests in maintaining a coherent system of family law which prioritised the best interests of the child, it could be justifiably cautious about changing the law. The Court also stated that X was not prevented from acting as the child's father in a social sense and could apply for a joint residence order with Y in respect of the child, and thereby acquire parental responsibility.

Gender Recognition Act 2004, section 2(1)

1 ... the [Gender Recognition] Panel must grant the application if satisfied that the applicant -

1. has or has had gender dysphoria,

2. has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,

3. intends to continue to live in the acquired gender until death, and

4. complies with the requirements [for producing medical reports and other supporting evidence] imposed by and under section 3.

PROBLEM AREA Married people who wish to change gender The provisions in the Gender Recognition Act 2004 that deal with people who are married but wish to apply for a Gender Recognition Certificate is complex and often misunderstood. It is not possible for a married person to obtain a full Gender Recognition Certificate. The individual can only apply for an interim one. This will not alter the definition of his/her sex. When an Interim Gender Recognition Certificate is issued this allows either party to have the marriage annulled (section 12(g), Matrimonial Causes Act 1973). If the marriage is annulled, the Interim Gender Recognition Certificate becomes a full one and the individual is free to enter a marriage or civil partnership in accordance with her or his 'new sex'. If one spouse has an Interim Gender Recognition Certificate, the couple can remain married, but the 'new sex' will not be legally recognised, for fear that it would create a same-sex marriage.

Marrying for bad reasons

Reading:

R (on the application of the CPS) v. Registrar General [2003] QB1222 Concerning: whether the state could stop people marrying for improper purposes Facts A man was facing trial for murder. He and the woman who was to be the chief prosecution witness sought to marry. Under the law of evidence a wife cannot be compelled to give evidence against her husband (except in certain unusual circumstances). The Crown Prosecution Service sought an order that the Registrar General of Births, Marriages and Deaths should not issue a marriage certificate on the ground of public policy. Legal principle It was held that the Registrar General did not have the power to stop two people from marrying on the basis of public policy. The Human Rights Act 1998 protected the right to marry and that did not depend on a person having a good reason for marrying.