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Law Express: Family Law
Jonathan Herring
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eBook - ePub
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Law Express: Family Law
Jonathan Herring
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About This Book
Revise with the help of the UK's bestselling law revision series.
Designed for students, this book will help you:
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Understand how to review essential cases, statutes, and legal terms
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Learn how to assess and approach the subject by using expert advice
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Learn how to lead further discussions
Find additional support on our Law Express companion website, which contains a host of extra resources to provide you with pre-exam guidance.
Visit go.pearson.com/uk/lawexpress
Jonathan Herring is a Professor of Law at Exeter College, University of Oxford.
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1
Marriage and civil partnership
Revision checklist
Essential points you should know:
ā¢ The grounds on which a marriage or civil partnership can be void
ā¢ The grounds on which a marriage or civil partnership can be voidable
ā¢ The differences between marriage and civil partnership
ā¢ The debates surrounding whether same-sex couples should be permitted to marry
Topic map
A printable version of this topic map is available from go.pearson.com/uk/lawexpress
Introduction
Before giving advice to a couple on a family law issue, it is essential to know whether they are married, civil partners or cohabitants.
This chapter will look at the age-old institution of marriage and the relatively new status of civil partnership. Over the years the legal significance of marriage has decreased. There is now an impressive array of statutes that give married and unmarried couples the same rights (e.g. Rent Act 1977, Family Law Act 1996). Nevertheless, marriage and civil partnership do carry some important legal rights and responsibilities. But perhaps more important than that, they provide a degree of social respect and acknowledgement of the relationship. Therefore, the laws on which couples can or cannot marry or enter civil partnerships tell us something about which kinds of relationship our legal system values. The Marriage (Same-Sex Couples) Act 2013 allows same-sex couples the opportunity to marry, making a clear break from the traditionally religious origins of marriage. Although quite what marriage means in contemporary society is a subject of considerable debate.
Assessment advice
Essay questions
There are two favourite areas for essay questions on this topic. The first is the issue of which couples can or cannot marry (or enter a civil partnership). You need to be able to explain the restrictions on marriage and discuss whether they are justifiable. The second is a question asking about the legal consequences of marriage or civil partnership. You need to be able to explain these, and particularly how marriage and civil partnership differ.
Problem questions
Problem questions often focus on the issues surrounding void and voidable marriages and civil partnerships. You will need to have a detailed knowledge of the case law. Students often do not know enough about the bars to relief (which is understandable because it is a rather boring area of the law!).
Who can marry whom?
The Matrimonial Causes Act 1973, section 11 sets out which marriages are void:
ā¢ marriages where the parties have knowingly and wilfully married in breach of the formality requirements;
ā¢ marriages between people within the prohibited degrees of relationship (e.g. a brother and a sister);
ā¢ either of the parties is under 16; or
ā¢ either of the parties is married to someone else. If they were previously married but the marriage has ended through death or divorce, they are free to marry.
The Marriage (Same-Sex Couples) Act 2013 has removed the provision that used to prevent same-sex couples marrying.
As long as the couple are not within one of these categories, they are free to enter a valid marriage. You will need to make sure you have learned this list of void marriages for the exam. Most of these requirements are straightforward. But there are some issues we need to look at in more detail.
Same-sex marriage
Same-sex marriage is now possible, but perhaps oddly, there are a few differences between same-sex marriage and opposite-sex marriage. The most striking differences are:
ā¢ a same-sex marriage cannot be voidable if there is a lack of consummation. An opposite-sex marriage can be (see pages 7ā8);
ā¢ a same-sex couple cannot rely on same-sex adultery as the basis for a divorce petition. An opposite-sex couple can rely on opposite-sex adultery (see Chapter 4).
This means it is still necessary to determine whether the parties to a marriage are male or female to know which set of rules apply.
The definition of male is that at birth the individualās genital, gonadal and chromosomal characteristics all pointed in the direction of being male. The equivalent is true for female. Psychological factors are not taken into account. If someoneās biological factors at birth are mixed (the person has an intersex body), a court can al...