Marriage, Civil Partnership and Cohabitation

Same Sex: Civil Partnership and Marriage
1. Civil Partnership Act 2004
  1. Marriage (Same Sex Couples) Act 2013
  2. Formalities
    1. Only available to those of the same sex. Section 3 sets out the formalities. Two people are not eligible to register as a civil partner if; they are not of the same sex, either of them is already a civil partner or lawfully married, either of them is under 16 or they are within the prohibited degrees. It is the same as marriage in all but name.
    2. Equality Act 2010 allows civil partnership to be part of a religious ceremony but same sex couples are still not allowed to 'marry'.
  3. Wilkinson v Kitzinger. A Canadian couple sought a declaration that s 11 MCA was incompatible with Art 12 ECHR in not allowing same sex couples to marry. The court held that the convention protected marriage in the convention sense between a man and woman and as other provisions were provided such as civil partnerships there was no breach.
  4. Schalk v Austria. Two men living in Austria wished to marry but could not and only a civil partnership was available although this did give them the same legal rights as marriage. They argued this was a breach of ECHR. The court reaffirmed that Art 12 only protected opposite sex couples. the court took the view that same sex marriage is controversial and each state should make it's own decision and be afforded a margin of appreciation.
2. Differences between marriage and civil partnership
  1. Under MCA S1 (2)(a) Adultery can be used to establish a ground for divorce. Under the CPA s 44(5) which lists the facts needed for dissolution adultery is not one of them.
  2. Under MCA S 12(a) and (b) Non-consummation can be a ground for rendering a marriage voidable. Under CPA s 50 (1) which lists the grounds for rendering a civil partnership voidable non-consummation is not one of them.
  3. Under MCA S12(e) If the respondent has a venereal disease this can render the marriage voidable. Under the CPA s 50 (1) venereal disease is not included as a ground for rendering a civil partnership voidable.
3. Marriage (Same Sex Couples) Act 2013
Marriage
1. Matrimonial Causes Act 1973
  1. Section 11- Grounds on which a marriage is void
    1. Within prohibited degrees of relationship
      1. Includes; parent, child, grandparent, grand children, siblings, uncle. nephew, aunty, niece. Includes whole and half blood relationships. Cousins may marry under English Law. A marriage between a step parent/grandparent and step child/grandchild will be void unless they are both over 21 AND the younger has not been a 'child of the family'. There are also restrictions between adopted child and members of their birth family. an adoptive child and adoptive parent are also within the prohibited degrees.
    2. Either part is under the age of 16
      1. Parental consent is required for 16 and 17 year olds to marry but the absence of such consent does not mean the marriage is void.
    3. The parties have intermarried in disregard of certain requirements as to the formation of marriage
      1. Must have knowingly and wilfully failed to comply with the requirements.Cases on the ceremony- Hudson v Leigh MA v J
    4. At the time of the marriage either part was already lawfully married
    5. The parties are not respectively male and female
      1. See civil partnerships and same sex marriage. W v W
    6. In the case of a polygamous marriage either party was domiciled in England and Wales
    7. Void Marriage= The marriage is automatically void; there is no need to obtain a court order to say so. any person can apply to have a marriage declared void. A child born to a couple in a void marriage is 'illegitimate' unless the couple believed their marriage to be valid. However, illegitimacy has very little significance in law today.
  2. Section 12- Grounds on which a marriage is voidable
    1. Marriage has not been consummated owing to the incapacity of either party to consummate it
      1. Heterosexual definition. penetration of the vagina by the penis no other form of sexual activity is relevant. There must be 'ordinary and complete intercourse...not partial and imperfect intercourse.' It must take place after marriage. Only one act of penetration is required. There is no requirements that the intercourse is capable of procreation. An inability to consummate must be; permanent and incurable, must relate to intercourse with the spouse and it may be physical or may arise from 'invincible repugnance'. The law is not clear whether the inability to consummate must be present at the ceremony or whether if the inability arises after the ceremony it would be sufficient grounds.
    2. the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it
      1. This is to be given an ordinary interpretation. A person cannot rely on their own wilful refusal.
    3. Either party to the marriage did not validly consent to it, duress, mistake, unsoundness of mind or otherwise.
      Attachments:
      - Marriage Civil Partnership and Cohabitation
      1. Forced marriage offences currently before parliament and new offences are being created. Cases- A Local Authority V N (2007) Westminster CC V IC (2008). Duress- will overbourne by a genuine and reasonably held fear caused by threat of immediate danger to life limb or liberty. Hirani Test (effect of the threat rather than kind of theat) followed in the lower courts.Mistake- Moss v Moss, the mistake must be fundamental such as identity. Unsoundness of mind- Sheffield CC V E (2004). Capable of understanding the nature of marriage. The courts are not against forced marriage or pressure from family the threat must be powerful.
    4. at the time of the marriage either party though capable of giving valid consent was suffering from a mental disorder within the meaning of the Mental Health Act 1983, unfit for marriage.
      1. Sheffield CC V E. A young woman who has 21 had the capacity of a 13 year old. The court said that in order to fulfill the capacity test she must not have the capacity to understand the nature of marriage at all. It would be insufficient to say she didn't understand the particular marriage or type of person she was marrying.
    5. At the time of marriage the respondent was suffering from a venereal disease in a communicable form.
    6. At the time of the marriage the respondent was pregnant by some person other than the petitioner.
    7. An interim gender recognition certificate has been issued to either party after the marriage.
    8. The respondent is a person whose gender at the time of the marriage had become acquired under the Gender Recognition Act 2004.
    9. Voidability- the court will not grant a decree of nullity on the groun that the marriage is voidable if the respondent satisfies the court that the petitioner with knowledge conducted himself so as to lead the respondent to reasonably believe that he would not seek to do so and that it would be unjust to the respondent to grant the decree.
    10. Section 50 Civil Partnership Act 2004 contains equivalent grounds for voidability but NOT: incapacity to consummate, wilful refusal to consummate or veneral disease. Delete
    11. Voidable marriage= The marriage can only be set aside if there is a court order. Without a court order annulling the marriage, it is a valid one. Only the parties to the marriage can apply to have a voidable marriage annulled. A child born to a couple in a voidable marriage is not 'illegitimate'. Delete
    12. Voidable marriage= The marriage can only be set aside if there is a court order. Without a court order annulling the marriage, it is a valid one. Only the parties to the marriage can apply to have a voidable marriage annulled. A child born to a couple in a voidable marriage is not 'illegitimate'.
  3. Section 25 a party may seek a decree of nullity if the marriage is void or voidable under Section 11 or Section 12
  4. Section 13- Bars to Annulment
    1. Even if the applicant establishes one of the voidable grounds he cannot annul the marriage if one of the following is present
    2. Approbation. the petitioner knew they could have avoided the marriage but behaved in such a way that the respondent believed they would not seek to annul the marriage.
    3. Three year bar if the applicant relies on grounds C D E F or H. Proceedings must be instituted within three years.
    4. Six month bar if the applicant relies on G and proceedings must be instituted within 6 months.
    5. Ignorance. In the case of E F and H the court cannot issue a decree unless satisfied that the petitioner was ignorant.
  5. Gender Recognition Act 2004
2. Same Sex Couples Act 2003
3. Gender Recognition Act 2004
  1. Section 2 (1) Gender Recognition Certificate
    1. Section 2(1) allows someone to apply for a Gender Recognition Certificate so that his or her legal sex will be the 'acquired gender'. the requirements are; has or has had gender dysphoria, has lived in the acquired gender throughout the period of two years ending with the date on which the application is made, intends to continue to live in the acquired gender until death and complies with the requirements in section 3. You do not need surgery to have a certificate. Once you have a certificate that will be your gender for all purposes. A married person can only apply for an interim certificate. Once the certificate is issued then either party can apply for the marriage to be annulled. If the marriage is annulled then the certificate becomes a full one. If the marriage is not annulled then the 'new sex' will not be recognised for fear that it will create a same sex marriage. Once the person has their 'new sex' they can enter into a marriage of civil partnership according to their g
4. Theory and Questions
  1. Decline of marriage and religious ceremonies
  2. Reasons why people marry
    1. Legal
    2. Religious
    3. Children
    4. Finances
    5. Contract
  3. What does the law value in adult relationships?
    1. Dependency
    2. Tradition and children legitimate.
    3. Burden v UK
Cohabitation
1. Differences between Marriage and Civil Partnership and Cohabitation.
  1. To enter or end a marriage of CP formality requirements must be met. There are no requirements to end cohabitation.
  2. At the end of a marriage of CP the court can redistribute the couples property, the court has now power over cohabitants.
  3. During marriage one spouse can seek financial support from the other. There is no obligation for a cohabitant to support the other.
  4. A father who is married to the mother of his child with automatically have parental responsiblity. A man who is not married will not automatically gain PR.
  5. When someone dies without a will their spouse will automatically inherit this is not the case for cohabitants.
  6. There are tax benefits for spouses but there are no advantages for unmarried couples.
2. Cohabiting couples often think they have the same rights as married couples but they are mistaken. It is important to consider different areas of law and how they are treated. It is accepted that there should be reform but it is difficult to define the different types of relationships.

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Marriage, Civil Partnership and Cohabitation

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	Created by rebeccamusgrove9 over 10 years ago