- •Family law (England and Wales)
- •1. Introduction
- •2. Marriage. The right to marry
- •3. Civil Partnership
- •Differences between marriage and civil partnership
- •Essay question
- •4. Entry into marriage
- •5. Entry into a Civil Partnership
- •6. Void and Voidable Marriages (the Law of Nullity)
- •Key definition
- •Problem area
- •Void marriage
- •Voidable marriage
- •7. The Legal Consequences of Marriage and Civil Partnership
- •Essay question
- •Questions
- •1. Property Rights of Engaged Couples
- •2. Property Rights of Married Couples
- •3. Property Rights of Cohabiting Couples
- •4. Resulting Trust
- •6. Proprietary Estoppel
- •Further thinking
- •Problem question
- •Answer guidelines
- •Question 1
- •Answer plan
- •1. The Development of Divorce Law
- •Irretrievable breakdown--------None of the 5 facts proved----------No divorce possible
- •Irretrievable breakdown-------- One of the 5 facts proved------------Divorce possible
- •Key definition
- •3. Bars to divorce
- •4. Divorce Procedure
- •1) Undefended divorce
- •2) Defended Divorce
- •5. Effects of Divorce
- •6. Recognition of a Foreign Divorce
- •Essay question
- •1. A presumption of death
- •2. Devolution of Property by Will (Testate Succession)
- •3. Devolution of Property without Will (Intestate Succession)
- •1. Who are the parents of the child?
- •Essay question
- •Key definition
- •3. Parental responsibility
- •Problem area
- •Essay question
- •General Test
3. Civil Partnership
Reading: In Fitzpatrick v. Sterling Housing Association Ltd [1999] 2 FLR 1027, the question was whether Mr Fitzpatrick who had lived with his male partner in a stable and long-lasting relationship should be entitled on his partner's death to succeed to a protected tenancy under the Rent Act 1977. The House of Lords held by a majority of 3 to 2 that he was entitled to succeed to the tenancy as the word 'family' in para. 3(1) of Sched. 1 to the Act could be interpreted flexibly to include the same-sex partner of the tenant's family. It was held that the word 'family' involved a relationship where there was a degree of mutual interdependence, the sharing of lives, caring and love, commitment and support. On the facts, Mr Fitzpatrick had been a member of the deceased's 'family' and was therefore entitled to succeed to the tenancy. Despite finding in Mr Fitzpatrick's favour, however, the House of Lords was unwilling to interpret 'living with the original tenant as his or her wife or husband' (in para. 2(2)) to include a homosexual partnership. It also stressed that its decision was strictly limited to the interpretation of the Rent Act, and that it was not a case which gave homosexuals rights more generally.
Civil Partnership Act 2004, section 3 Two people are not eligible to register as civil partners of each other if -
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Differences between marriage and civil partnership
MCA: Matrimonial Causes Act 1973
CPA: Civil Partnership Act 2004
Adultery is a fact which can be used to establish the ground for divorce (MCA, section 1(2)(a)) |
Adultery is not a fact which can be used to establish the ground for dissolution (CPA, section 44 (5)) |
Non-consummation can be a ground for rendering a marriage voidable (MCA, sec. 12(a) and (b)) |
Non-consummation cannot be a ground for rendering a civil partnership voidable (CPA, sec. 50 (1)) |
The fact that the respondent has a venereal disease can renders marriage voidable (MCA, sec. 12(e)) |
The fact that the respondent has a venereal disease cannot render a civil partnership voidable (CPA, sec. 50 (1)) |
A religious service can be included as part of a marriage (Marriage Act 1949, sec. 5) |
A religious service cannot be included as part of a civil partnership (CPA, section 1 (5) |
Reading:
Wilkinson v. Kitzinger [2006] 2 FCR 537 Concerning: whether same-sex partners have a right to marry Facts Ms Wilkinson and Ms Kitzinger had married in Canada. They had now moved to England and lived and worked there. They sought a declaration from the court on whether or not they were married or could marry in English law. Alternatively, they sought a declaration that section 11 (c) of the Matrimonial Causes Act 1973, which did not permit them to marry, was incompatible with the Human Rights Act 1998. Legal principle A same-sex couple could not marry under English law, although they could enter a civil partnership. The bar on same-sex marriage in section 11 (c) was not incompatible with the European Convention on Human Rights. Article 12 of the Convention gave the right to marry, but that was to marry in the conventional sense (i.e. a marriage between a man and a woman). Parliament had to consider the issue of regulation of same-sex relationships and produced the Civil Partnership Act 2004. That was an appropriate way of giving same-sex couples legal rights, without challenging the traditional understanding of marriage. |