Unit 1: Marriage/Civil partnerships

Question 1

Gina and Helga entered into a Civil Partnership in 2009. They now wish to be married to each other.

Answer 1

They can convert their civil partnership into a marriage under s9 of the Marriage (Same Sex Couples) Act 2013

Question 2

Definition of marriage

Answer 2

“I conceive that marriage may… be defined as the voluntary union for life of one man and one woman to the exclusion of all others” per Lord Penzance

Hyde v Hyde (1866)

Question 3

Key formalities

Answer 3

1. Publicity: must be publicised beforehand to allow objections. Normally by way of notice in the registry office.
2. Registration: entered on register
3. Ceremony:
   A. Exchange of vows
   B: ceremony must be open to the public
   C. Witnesses (at least 2)
   D. Venue must be licensed for marriages
   E. Authorised person present to conduct the ceremony e.g. registrar

Question 4

McCabe v McCabe (1994)

Answer 4

Facts: Irish man and Ghanaian woman. Ghanaian custom whereby man paid woman’s family £100 and a bottle of whisky, which was then shared with the wife’s relatives.
Held: viewed as a valid marriage as met Ghanaian legal requirements at that time

Question 5

Capacity to marriage

Answer 5

Under s11 MCA 1973 there are 3 elements which must be satisfied to establish capacity:

1. Age: over 16; if under 18 parental consent required
2. Unmarried: polygamy prohibited
3. Prohibited degrees of relationship i.e. not closely related

Question 6

Prohibited degrees of relationship

Answer 6

Marriage Act 1949 Sch 1

Adoptive child
Adoptive parent 
Child
Grandparent 
Grandchild
Parent 
Parent’s sibling 
Sibling

Question 7

Corbett v Corbett (1971)

Answer 7

Biological sex is fixed at birth. Historically posed problems for transgender people. Since overridden by statute: Gender Recognition Act 2004

Question 8

Void marriages

Matrimonial Causes Act 1973 s11

Answer 8

1. Age (s11(a)(ii)
2. Existing marriages (s11(b))
3. Prohibited Degrees (s11(a)(i)
4. Intermarry in disregard of certain requirements as to formation of marriage under s49 Marriage Act 1949 (s11(a)(iii)) - only if parties knowingly and willfully disregarded requirements

Question 9

Voidable marriages

Matrimonial Causes Act 1973 s12

Answer 9

Marriage not automatically void but either party may

Question 10

MCA 1973 s12(a)

Answer 10

marriage not consummated owing to incapacity

Question 11

MCA 1973 s12(b)

Answer 11

not consummated owing to wilful refusal

Question 12

MCA 1973 s12(c)

Answer 12

either party did not validly consent… whether consequence of duress, mistake, unsoundness of mind or otherwise

Question 13

MCA 1973 s12(d)

Answer 13

at time of marriage, though capable of giving consent, was suffering (continuously or intermittently) from mental disorder under Mental Health Act 1983 of such kind or to such extent as to be unfitted for marriage

Question 14

MCA 1973 s12(e)

Answer 14

At the time of the marriage the respondent was suffering from venereal disease in a communicable form

Question 15

MCA 1973 s12(f)

Answer 15

at time of marriage the respondent was pregnant by some person other than the petitioner

Question 16

MCA 1973 s12(g)

Answer 16

interim gender recognition certificate under GRA 2004 has, after the time of the marriage, been issued

Question 17

MCA 1973 s12(h)

Answer 17

Respondent is a person whose gender at the time of the marriage had become the acquired gender under GRA 2004

Question 18

Hirani v Hirani (1983)
Ormerod LJ
Test for Duress

Answer 18

19 year old woman entered marriage under pressure exerted by parents. Sir Jocelyn Simon in Szechter v Szechter, stringent objective test = genuinely and reasonably held fear… immediate threat to life, limb or liberty. Ormerod applied Singh v Kaur - distinction between disagreeable situation and real threat
Test - threats and pressures such to destroy the reality of consent

Question 19

Singh v Singh (1971)

Answer 19

incapacity not limited to physical incapacity - also includes repugnance, psychiatric or sexual aversion

Question 20

Houghton v Houghton (1947)

Answer 20

must show definite and settled decision not to consummate

Question 21

Hudson v Leigh (2009)

Answer 21

whether or not non-marriage must be considered on case by case basis. general factors:

1. whether ceremony set out/purported to be lawful marriage
2. whether bore all hallmarks of marriage
3. whether couple/officiating officer believed, intended and understood ceremony to be lawful
4. reasonable perceptions of those in attendance

Question 22

HM Attorney-Geneal v Akhter (2020)

Answer 22

islamic ceremony conducted in restaurant. Knew has no legal effect. Intended to be followed by civil ceremony. CoA held: not qualifying ceremony and does not create void marriage; not married under provision of MA 1949 e.g. no notice, not registered building, no certificates, no registrar/authorised persons

Question 23

A v A (2012)

Answer 23

registration requirements not complied with. Religious ceremony (mosque) conducted by non-authorised person in presence of authorised person. held: valid marriage.. although not registered place both parties wanted marriage to be legal and lived 5 years in belief it was

Question 24

Chief Adjudication Officer v Bath (2000)

Answer 24

building not being registered is not necessarily fatal to marriage being valid

Question 25

Wilkinson v Kitzinger (2006)

Answer 25

Legally married in canada; sought declaration under s5 FLA 1986. s11(c) MCA 1973 - marriage void when persons of same sex. s215 CPA 2004 same-sex marriage entered into abroad to be treated as civil partnership. Argued met requirements of marriage. breach of Art 8, 12 and 14 ECHR/HRA 1998. held: still civil partnership.

Question 26

Bellinger v Bellinger (2003)

Answer 26

man underwent gender reassignment surgery. Sought declaration marriage valid or s11(c) MCA incompatible with Art 8/12 ECHR. HoL held: Corbett v Corbett clear authority. issued declaration of incompatibility. Fundamental change in law required enactment of Act by parliament (GRA 2004)

Question 27

Sham Marriage

Answer 27

marriage entered into willingly by both parties i.e. compiled with fomalities for formation valid marriage with invalid purpose requires divorce to end as not voidable (s12)/void (s11)

Question 28

Vervaeke v Smith (1983)

Answer 28

belgian woman marrying british man, aim of obtainig british passport to retain job as prostitute without fear of being deported. same woman married Italian man. husband died leaving £1.5m property in UK. only inheit of 2nd marriage valid. first marriage valid so second void as already married (s11(b) MCA)

Question 29

Gender Recognition Act 2004

Answer 29

didn't alter law on capcity; provide means whereby trans persons can obtain legal recognition of acquired gender via grant of gender recognition certificate

Question 30

GRA 2004 s1

Answer 30

must be aged 18 and apply to gender recognition panel. basis of grant of certificate: applicant living as acquired gender, or has changed gender (s1(1)(a)) under law of country outside UK (s1(1)(b))

Question 31

GRA 2004 s2

Answer 31

under s1(1)(a) application applicant must under: s2(1)(a) has/had gender dysphoria s2(1)(b) lived in acquired gender 2 years prior (ending with application date) s2(1)(c) intends to live as acquired gender until death s2(1)(d) meet s3 requirements

Question 32

GRA 2004 s3

Answer 32

under s3(1) must provide medical evidence of treatment having or underwent