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1
Marriage and civil partnership
1.1.1 The definition of marriage
1 Marriage is the voluntary union for life of one man and one woman to the exclusion of all others (Hyde v Hyde (1866)).
3 The Marriage Act 1949 requires:
for a Church of England wedding ā the publications of banns, a licence, or a certificate of a superintendent registrar or naval officer;
for other marriages ā a certificate of a superintendent registrar.
4 Marriages can be solemnised in:
a church or chapel of the Church of England;
a registered non-conformist church or other building;
premises approved by the local authority;
any place if a special licence is obtained.
5 Jews and Quakers may marry according to their own customs with a certificate from a superintendent registrar.
6 Following the Gender Recognition Act 2004 transsexuals may marry according to their āacquired genderā after issue of a āgender recognition certificateā.
1.2.1 Void marriages
1 A void marriage will be treated as never having taken place.
2 The parties can treat it as never having taken place without having to get a decree of nullity.
3 The validity of a marriage can be put in issue at any time even after the death of one or both of the parties.
4 A decree of the court is not necessary to end the marriage as it never existed, but a nullity petition will give access to the courtās powers to deal with finance after divorce and will have a declaratory effect.
5 S 11 Matrimonial Causes Act 1973 (MCA 1973) sets out the grounds for nullity:
It is not valid under the Marriages Act 1949 because:
i) the parties are within the prohibited degrees of relationship;
ii) either party is under 16;
iii) the parties have intermarried.
At the time of the marriage either party was already lawfully married.
The parties are not male and female. Same sex āmarriagesā are not possible (but see civil partnerships, 1.6 below). The Gender Recognition Act 2006 makes marriages of transsexuals in their acquired gender possible.
The marriage was polygamous, entered into outside England and Wales and one party was domiciled in England and Wales at the time of the marriage. The Private International Law (Miscellaneous Provisions) Act 1995 amended the law so that the marriage is not void simply because it was conducted abroad under a law which allows polygamy, but only if either spouse already had a spouse when married in England and Wales.
1.2.2 Voidable marriages
1 A voidable marriage will be regarded as a valid subsisting marriage until a decree annulling it has been pronounced at the request of one of the spouses.
2 Its validity cannot be challenged after the death of one of the parties.
3 For non-consummation due to incapacity, the incapacity must be incapable of removal by medical or psychological treatment. An inability to conceive or a lack of enjoyment of the intercourse is not sufficient (Baxter v Baxter [1947] 2 All ER 43).
4 The incapable party may petition, but a decree will not be given if the other party objects (Pettit v Pettit [1962] 3 All ER 37).
5 Wilful refusal to consummate is a āsettled and definite decision come to without just excuseā (Horton v Horton [1947] 2 All ER 871).
6 Consummation must have been suggested to the refusing party āwith such tact, persuasion and encouragement as an ordinary spouse would use in such circumstancesā (Baxter v Baxter [1947] 2 All ER 43).
7 Refusal to go through with a religious ceremony upon which cohabitation is contingent can amount to wilful refusal (A v J (Nullity Proceedings) [1989] 1 FLR 110).
8 For valid consent, the parties must be capable of understanding the nature of the contract and the responsibilities of marriage (Hill v Hill [1959] 1 All ER 281).
9 For duress, the test is āwhether the threat, pressure, or whatever it is, is such as to destroy the reality of the consent and ov...
