Marriage+Civil Partnership

Question 1

Developed the ‘ordinary person’ test of the traditional/conservative definition of family

Answer 1

Sefton Holdings v Cairns [1988] - a platonic relationship no matter if the parties define themselves as a family can be regarded as a family in law. Have to convince the ordinary person that they’re a family

Question 2

Two examples of the old traditional/conservative approach to defining a family - transgender and gay rights

Answer 2

1. Harrogate Borough Council v Simpson (1984) - a same sex couple, one died and the european court held that the tenancy of the house couldn’t be inherited; and
2. Corbett v Corbett [1971] - transgender’ woman, her marriage fell apart and her ex successfully claimed they had a void marriage because the court decided you are what you’re born as

Question 3

Law which changed the description of male and female to a more liberal approach

Answer 3

Matrimonial Causes Act 1973

Question 4

Reasoning for the need for love/lust in relationships for them to be valid civil partners/spouses

Answer 4

Lord Browne-Wilkinson in Barclays Bank v O’Brien - protection for people in relationships is based on the risk of one individual “exploiting the emotional involvement and trust of the other”. So love and lust is the gateway in superior protection because within certain kinds of relationships we make less rational choices in our self-interest, making ourselves more vulnerable. Recognised undue influence could be placed on a partner

Question 5

Landmark case which held that a marriage could be consummated without the potential for children

Answer 5

Baxter v Baxter (1948) - began the secularisation of family law. it was held to still be consummated even though they used a condom

Question 6

First time the courts recognised someone as the parent of the child if they left the relationship to enter a homosexual relationship

Answer 6

Re P (A Minor) (Custody) [1983]

Question 7

Current law on same sex partner’s rights and family life - surviving partner (unmarried) in a same-sex relationship has the right of succession of a tenancy of the property

Answer 7

same-sex partners, can inherit the tenancy of the shared house/flat if one passes away - Fitzpatrick v Sterling Housing Association [1999] and Ghaidan v Mendoza [2003]
- law was read to be compatible with Art 8 ECHR

Question 8

It is enough to be “as if they were living as husband/wife” - more inclusive reading of the Rent Act 1977 in this case

Answer 8

Ghaidan v Mendoza [2003]

Question 9

UK legislation which was a response to countries across Europe giving equal family rights to couple regardless of sexual orientation

Answer 9

Civil Partnerships Act 2004 - developed a quasi-marriage for same sex partners

Question 10

Two cases which show the Civil Partnerships Act 2004 being upheld - can’t refuse to comply

Answer 10

1. Ladele v Islington LBC [2009] - registrar who refused to do civil partnership ceremonies because of his religious beliefs. not allowed
2. McFarlane v Relate Avon Ltd [2010] - marriage councillor unsuccessful in unfair dismissal claim for refusing to council civil partners

Question 11

Most recent case which held that heterosexual couples should be allowed to be civil partners

Answer 11

Steinfeld v Secretary of State for Education [2018]

Question 12

Case which held that two women who were legally married in Canada didn’t have a valid marriage in the UK - can now be legally married but still

Answer 12

Wilkinson v Kitzinger [2006]

Question 13

Controversial judgment which held that it is within country’s margin of appreciation as to whether they legalise same-sex marriage

Answer 13

Schalk and Kopf v Austria in 2010 - but in later case of Villianatos v Greece (2014) countries have to do it in a non-discriminatory way
NB - similar with transgender issues

Question 14

Legalised same-sex marriage in England

Answer 14

The Marriage (Same Sex Couples) Act 2013 - s.1(1), interpretation in Schedule 3 
--> Church of England are exempt from this

Question 15

Exceptions in Marriage (Same Sex Couples) Act 2013 - not in statute book for some reason

Answer 15

Schedule 4, para.3 - no divorce on grounds of adultery

Schedule 4, para.4 - no voidable marriage on grounds of consummation

Question 16

Provision under which civil partners can convert their civil partnership to a same sex marriage

Answer 16

s.9 Marriage (Same Sex Couples) Act 2013

Question 17

Two very important cases which were the first time the UK were prevented from using their margin of appreciation on family rights of transgender people by the ECtHR

Answer 17

Goodwin v UK (2002)
I v UK
Both cases heard together - Breach of art 8, 12, both taken together with art 14. Successful in both of those arguments. Government basically said it would be inconvenient to change e.g. pension schemes, etc. to have to accommodate this tiny proportion of the population. These problems did not outweigh the reach of the rights of the individual. Court required UK government to change its law - there cannot be a blanket ban in recognising transgender people.
BUT… worth noting that in both cases the applicants were “fully achieved and post-operative transsexuals”

Question 18

Key case on transexual issues

Answer 18

Bellinger v Bellinger [2003] - marriage still had to be between a man and woman (biologically). Issued a declaration of incompatibility.
Registrar didn’t check her birth certificate so was able to get married as a transgender woman but then went to court actively seeking a declaration that the marriage was valid

Question 19

Provisions for an adult person to be legally ‘recognised’ in an ‘acquired’ gender identity, as long as the following requirements are met.

Answer 19

s.1, s.2 and s.3 Gender Recognition Act 2004 –> are given a gender recognition certificate if successful

Question 20

The status of an applicant, as the parent of a child, is not changed by the grant of a Gender Recognition Certificate in an acquired gender

Answer 20

s.12 Gender Recognition Act 2004

Question 21

Reform of the Gender Recognition Act 2004 brought in to solve the issue that previously a person already married in his or her birth sex would not be fully recognised in an acquired gender identity even if the above criteria are met, unless and until that marriage is ended by death, divorce or nullity

Answer 21

s.4, s.4A and s.11A Gender Recognition Act 2004

Question 22

Provisions for civil partners wanting to be issued with a Gender Recognition Certificate under the GRA 2004

Answer 22

s. 4(2)(c) - for full gender certificate only if their partner has also applied for one because civil partners have to be the same gender –> rare
s. 4(3)(c) - interim gender certificate if the other partner has not so applied, or has applied and been rejected by the GR Panel
s. 5B - for application by both civil partners -

But in general, if only one party wants to change their gender then can change their civil partnership to a marriage

Question 23

Case which held it was a breach to deny a male to female transsexual the entitlement to their pension at 60 because for men it is 65

Answer 23

Christine Timbrell v Secretary of State for Work and Pensions [2010]
- but also could work the other way round, female to male transsexuals will lose their entitlement to pension at 60

Question 24

Case after Timbrell [2010] which held that after the GRA 2004 they can legally change their gender, if you haven’t done that then it’s okay for the govt to not pay the pension in the preferred gender - have to take advantage of the mechanism that existed.

Answer 24

M v Revenue and Customs [2010] - a male to female transsexual who underwent gender reassignment surgery at the age of 59 was not entitled to be treated as female for pension purposes until she had obtained a Gender Recognition Certificate

Question 25

Why is the Gender Recognition Act 2004 controversial?

Answer 25

1. The Panel has insisted on really intrusive levels of detail about the surgeries that people have undergone or their intentions for future surgery’ - Scottish Transgender Alliance, contributor to the report produced to suggest reform.
2. The Act deploys a construction of transsexualism as a mental disorder.
3. Some individuals will lose entitlements on recognition e.g. FTM transsexuals above the age of 60 for example have to work until the male age of retirement.

Question 26

Report produced to analyse the law on transgender rights - in particular the rules for legal gender recognition

Answer 26

Transgender Equality Report produced by the Women and Equality Committee in 2015-16 - “The Gender Recognition Act 2004 was pioneering but is now dated. Its medicalised approach pathologises trans identities and runs contrary to the dignity and personal autonomy of applicants. The Government must update the Act, in line with the principle of gender self-declaration.”
Suggests that trans individuals should be able to access legal gender recognition through a process of self-determination (controversial)
and potentially including legal recognition of non-binary gender identities
- government responded in 2016

Question 27

Academic opinion on the Gender Recognition Act 2004, in support of the Report on Transgender Equality produced by the House of Commons Women and Equalities Committee

Answer 27

Peter Dunne - ‘the 2004 Act’s express coupling of gender recognition and gender dysphoria implies that trans identities are inherently unstable and that trans individuals experience mental health concerns. The diagnosis requirement stigmatises applicants for recognition, and encourages the further marginalisation of trans communities. Finally, and perhaps most fundamentally, many applicants object to third party assessment of their gender. As the people who live their gender on a daily basis, trans individuals argue that it is they, rather than the Panel or a medical professional, who are best placed to make an informed judgement’
- advocating for a self-declaration model similar to Denmark, Sweden etc. and, most significantly for us, Ireland in the Gender Recognition Act 2015

Question 28

Pre-GRA 2004 case which held that you are what you are born – look at the genitals, the chromosomes, the gonads. Even though some of these could be changed (e.g. the first), the other two couldn’t be changed, external changes are deceptive.

Answer 28

Corbett v Corbett - male to female transsexual, they didn’t pick up from the birth certificate that she was actually male. Marriage went wrong, she divorced him. Her ex claimed that they were never actually married because she had been a man so the marriage not valid - the court agreed.

The non liberal approach - If you haven’t taken advantage of the procedure in the 2004 act, then Corbett is still applied

Question 29

sisters cannot be considered civil partners in the eyes of the law

Answer 29

Burden v UK [2008] - sisters who had always lived together and weren’t married wanted to be registered as civil partners to be exempt from inheritance tax and prevent the surviving sister having to sell the house and live the rest of her days somewhere else - court held it wasn’t discrimination, within UK’s margin of appreciation

Question 30

Excluded partnerships - sisters cannot be considered civil partners in the eyes of the law

Answer 30

Burden v UK [2008] - sisters who had always lived together and weren’t married wanted to be registered as civil partners to be exempt from inheritance tax and prevent the surviving sister having to sell the house and live the rest of her days somewhere else - could held it wasn’t discrimination, within UK’s margin of appreciation
- without love and lust it isn’t similar to marriage, arguably a restrictive approach

Question 31

Private members’ bill saying civil partnership should be open to opposite sex couples.

Answer 31

Tim Loughton’s Civil Partnership Act 2004 (Amendment) Bill (July 2016).

Question 32

Case which reviewed previous case law on the concept of marriage and concluded that a more modern view needs to be taken, no concept of dominance and submission

Answer 32

Sheffield City Council v E [2005] per Munby J
“Today both spouses are the joint, co-equal heads of the family. Each has an obligation to comfort and support the other. “ –> emphasised reciprocity of relationships now

Question 33

Statutory provision which abolished a husband’s duty to maintain his wife (not in statute book)

Answer 33

s.198 Equality Act 2010

Question 34

What provisions state that a marriage is voidable if a partner is issued with an interim Gender Recognition Certificate

Answer 34

s. 12(1)(g) MCA 1973

s. 4 and s.5 GRA 2004

Question 35

Rosemary Auchmuty’s opinion on Law Com 2007 proposals to close the gap between cohabitation and marriage

Answer 35

1. Trying to ‘myth bust’ the idea that cohabitation isn’t enough to protect you when trying to reallocate shares.
2. Doesn’t think the current Law Com proposals do enough for gender equality – shouldn’t be encouraging women to be dependent and lack of autonomy.
3. the gap is gradually diminishing through various judicial and statutory changes
4. Some cohabitants would actually be disadvantaged by the reform, particularly wealthy ones, may have deliberately chosen to avoid marriage because they want to retain their financial independence

Question 36

Lady Hale’s opinion in her judgment in Radmacher v Granatino on reform of the gap between marriage and cohabitation (opposes Rosemary Auchmuty)

Answer 36

1. we should extend more rights because – she sees it as more of a social policy issue, she argues that stable families benefit everyone because people in supportive stable families tend to be happier, wealthier, healthier. Family breakdown has societal disadvantages for everyone including the children.
2. She focuses on the children – it’s all well focusing on the parents having autonomy but as a child you can suffer the consequences of their decisions which you do not have any control of.
3. argued that it’s unrealistic to expect people in families to be making rational decisions all the time because generally in families you care about people and so you make decisions for the good of the family

Question 37

Law Com 307 suggestions in 2007 for reform of cohabitation

Answer 37

Report said there should be state scheme of protecting cohabitants. An opt-out scheme if you live together for longer than 2 years or have a child together. But requirements to pay some qualifying contribution –> have to pay into the relationship as well.

Suggestion was that after a certain period of time then you should get some rights as cohabiting person. Especially if there’s a division of labour – one person works, another looks after the children, if this breaks down then you have no rights. A lot of support for this. However, can you impose obligations on someone without them agreeing to it voluntarily (through marriage?).
Coalition did nothing to implement the negotiations. In Scotland it was taken on board.
Lord Marks, private members bill every year to try and implement the commission’s recommendations.