Law Express: Family Law ePub Electronic Book

Jonathan Herring

• Publisher: Pearson
• Year: 2018
• ISBN:
  9781292210575
• Edition: 7

Revise with the help of the UK’s bestselling law revision series. · Review essential cases, statutes, and legal terms before exams.
· Assess and approach the subject by using expert advice.
· Gain higher marks with tips for advanced thinking and further discussions.
· Avoid common pitfalls with Don’t be tempted to.
· Practice answering sample questions and discover additional resources on the Companion website.

Chapter 1

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Marriage and civil partnership

Revision checklist

Essential points you should know:

• The grounds on which a marriage or civil partnership can be void
• The grounds on which a marriage or civil partnership can be voidable
• The differences between marriage and civil partnership
• The debates surrounding whether same-sex couples should be permitted to marry

Topic map

A printable version of this topic map is available from www.pearsoned.co.uk/lawexpress

Introduction

Before giving advice to a couple on a family law issue, it is essential to know whether or not they are married or civil partners.

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!).

Sample question

Could you answer this question? Below is a typical essay question that could arise on this topic. Guidelines on answering the question are included at the end of this chapter; a sample problem question and guidance on tackling it can be found on the companion website.

ESSAY QUESTION

Discuss the differences between civil partnerships and marriages. Should the law have been changed to allow same-sex couples to marry?

Who can marry whom?

The Matrimonial Causes Act 1973, section 11 sets out which marriages are void:

• marriages where the parties have knowingly and wilfully married in breach of the formality requirements;
• marriages between people within the prohibited degrees of relationship (e.g. a brother and a sister);
• either of the parties is under 16;
• 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:

• a same-sex marriage cannot be voidable if there is a lack of consummation. An opposite-sex marriage can be (see pages 7–8);
• a same-sex couple cannot rely on same-sex adultery as the basis for a divorce petition. An opposite-sex couple can (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.

KEY DEFINITION: Male and female

The definition of male is that at birth the individual’s 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 someone’s biological factors at birth are mixed (the person has an intersex body), a court can also consider other factors, including psychological factors that materialise later in life. The Gender Recognition Act 2004 enables someone to apply for a Gender Recognition Certificate, which recognises for legal purposes that their sex is that in which they now live.

EXAM TIP

A question that is interesting to discuss in an essay is why sex is defined in terms of biological rather than psychological factors. Should what is between the legs matter more than what is in the head? Some people have even argued that we should reject the idea that everyone is either male or female and instead recognise that we are all people and cannot be pigeonholed into being either male or female (see Chau and Herring (2002)).

The Gender Recognition Act 2004

This Act enables someone to apply for a Gender Recognition Certificate so that his or her legal sex will be the ‘acquired gender’ (i.e. the gender the person wishes to be recognised as having).

KEY STATUTE

Gender Recognition Act 2004, section 2(1)

‘… the [Gender Recognition] Panel must grant the application if satisfied that the applicant –

(a)	has or has had gender dysphoria;
(b)	has lived in the acquired gender throughout the period of two years ending with the date on which the application is made;
(c)	intends to continue to live in the acquired gender until death; and
(d)	complies with the requirements [for producing medical reports and other supporting evidence] imposed by and under section 3.’

Once a Gender Recognition Certificate is issued, the person’s acquired gender is his or her gender for all purposes (Gender Recognition Act 2004, s. 9). Note that it is not necessary for a person to have received surgery in order to obtain a certificate. In Carpenter v Secretary of State for Justice (2015) an argument that these formalities, and in particular the need for medical reports, were in brea...