Essay question

1. Discuss the differences between civil partnerships and marriages. Are there any good reasons why a same-sex couple should not be permitted to marry?

A question which it is interesting to discuss in an essay is why it is that sex is defined in terms of biological factors rather than psychological ones. Should what is between the legs matter more than what is in the head? Some people have even argued that we should reject the idea that everyone is either male and female and instead recognise a sexual scale with people at different points on it.

Answer guidelines

1. The differences are of no practical significance. For example, where there is adultery, the unreasonable behaviour fact can be relied upon.

2. The differences are symbolically important because they related to sex. They indicate that the law cannot accommodate, or feels uncomfortable about, same-sex relations.

The question also asks you about whether two people of the same sex should be allowed to marry. You should start by making it clear that under the current law two people of the same sex cannot marry, although they can enter a civil partnership. The issues you will want to raise include the following:

- The religious significance of marriage and the fact many religions would not accept same-sex marriage. Should religious objections be relevant to the law on marriage? Or does respect for religious belief require that grave offence is not caused?

- Is it discrimination on the grounds of sex or sexual orientation for a same-sex coup le not to marry? (See the Wilkinson v. Kitzinger case for discussion of this.) Does the fact that the Gender Recognition Act 2004 allows transsexual persons to marry in accordance with their acquired gender mean that same-sex couples should be allowed to marry?

- Why is sex so important to marriage? Should it not be about tenderness, loving and caring, rather than whether or not there is a sexual component?

4. Entry into marriage

PRELIMINARIES:

(1) Marriages according to the rites of the Church of England:

- banns or on the authority of a common licence,

- a special licence,

- a superintendent registrar's certificate.

(2) Preliminaries for All Marriages, Other than Church of England Marriages:

- a superintendent registrar's certificate,

- the Registrar General's licence.

5. Entry into a Civil Partnership

The Civil Partnership Act provides for four different registration procedures - the standard procedure, the procedure for house-bound persons, for detained persons, the special procedure for cases where a person is seriously ill and not expected to recover.

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

Grounds on which a Marriage is Void

Section 11 of the Matrimonial Causes Act 1973 provides that a marriage is void where: '(a) ... it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where - (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of sixteen; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage); that at the time of the marriage either party was already lawfully married or a civil partner; that the parties are not respectively male and female; (d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales."

Reading: For the purpose of deciding whether a marriage is void under s.11, the court may have to decide whether the ceremony which took place can be regarded as a marriage ceremony, for if there was no marriage at all, a nullity decree is not needed and may be refused. In Gereis v. Yagoub [1997] 1 FLR 854, the marriage ceremony had taken place in a Coptic Orthodox Church, which was not licensed for marriages under the Marriage Act 1949, and had been con­ducted by a priest who was not licensed to conduct marriages under English law. In nullity proceedings, one of the parties submitted that a decree of nullity should not be declared as there never was a valid marriage. However, the court rejected this submission, as the church ceremony bore all the hallmarks of an ordinary Christian marriage and the marriage had been treated as a subsisting marriage by all those who had attended. The marriage was therefore capable of being declared void under s. 11 (a)(iii) and a decree of nullity was granted.

Grounds on which a Marriage may be Voidable

Section 12 MCA 1973 provides that a marriage is voidable where: the marriage has not been consummated owing to the incapacity of either party to consummate it; the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it; either party to the marriage did not validly consent to it, whether in conse­quence of duress, mistake, unsoundness of mind or otherwise; at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from men­tal disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage; at the time of the marriage, the respondent was suffering from venereal disease in a communicable form; (f) at the time of the marriage, the respondent was pregnant by some person other than the petitioner. (g)that an Interim Gender Recognition Certificate under the Gender Recognition Act 2004 has, after the time of the marriage, been issued to either party to the marriage; (h) that the respondent is a person whose gender at the time of the marriage has become the acquired gender under the Gender Recognition Act 2004.