Marriage And Conceptions Of The Family

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Same Sex Marriage

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Contained in the Marriage (Same Sex Couples) Act 2013 and it is exactly the same as opposite sec marriage with two exceptions:

- adultery for the purpose of divorce remains a heterosexual concept - s1(6) MCA 1973

- no requirement for consummation in same sex marriages - s12(2) MCA 1973

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The Gender Recognition Act 2004

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- s2 has the requirements for getting a GRC - worth noting that surgery is not necessary

- s9 gender changes legally when you have a GRC

- s12: parent recognition gender never changes

- civil partners can only get a GRC on the same day as your partner so better to upgrade to same sex marriage first

- Timbrell - male to female transsexual won her case when she was not allowed to be treated as a woman for pension purposes

- M - she had gender change surgery but because she didn't have a GRC the law was blind to her change of gender

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Void marriages (s11 MCA 1973): the marriage never existed but parties normally still get a decree of nullity. They can get court proceedings stating the legal position and to make financial orders.

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A marriage will be void if:

- (a)(i) it falls within the prohibited degrees of relationship:

Marriage Act 1949, Schedule 1, Parts 1 and 2

Stubing v Germany - interference with Article 8 right was justified due to the prohibition on incest

- (a)(ii) either party is under the age of 16

Pugh [1951] - not a valid marriage when UK citizen married a girl under 16 in India. Would have been valid if between two Indian citizens.

Alhaji Mohamed v Knott - it is a crime to have sex with someone under 16 but not if you're married. No longer possible as immigration law says you can't bring a wife under 16 into the UK.

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Void marriages continued

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- (a)(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage

- (b) one or both of the parties to the marriage was already lawfully married or a civil partner

- (c) the parties are not male and female respectively: repealed by the 2013 Act

- (d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales

Cheni [1965] - uncle and niece married in Egypt and as it was valid there it was valid in the UK.

McCabe [1994] - Irish man and Ghanaian woman married by way of a traditional Ghanaian ceremony and it was recognised as valid in the UK as no UK Citizen involved.

Baindail [1946] - policy is to recognise marriages as valid unless there is some good reason not to, which includes polygamous marriages.

Mohamed v Knott [1968] - polygamous marriages are recognised in the UK unless there is some reason to the contrary

Bibi v Chief Immigration Officer [1998] - two wives excluded from claiming a widow's pension due to being in a polygamous marriage.

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Voidable marriages (s12 MCA 1973)

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A voidable marriage is a valid marriage unless or until it is annulled for one of the reasons below - s16 MCA 1973.

One way a marriage can be voidable is if it's not been consummated.

Rebecca Probert believes that consummation as a ground of nullity should be abolished.

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Consummation basic rules

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D-E v A-G (1845) –consummation means sexual intercourse which is “ordinary and complete, and not partial and imperfect”.

Baxter v Baxter (1948)– consummation with birth control is still effective consummation.

Cackett v Cackett[1950] – White preferred over Grimes – coitus interruptus could be consummation.

Clarke v Clarke [1943]– decree of nullity granted even though she was pregnant. Convinced the judge they hadn’t actually had sex.

R v R (1952) –unable to ejaculate so wife sought a decree of nullity but she was unsuccessful, Baxter was applied.

W v W [1967] –decree of nullity given as his erection “collapsed” when they tried to have sex. Court said act of intercourse has to last a reasonable amount of time and it hadn’t here.

Corbett – left uncertain as to whether transsexuals can consummate.

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s12(1)(a) - incapacity

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SY v SY (1963) – inability to consummate must be permanent and where people are willing to undergo medical treatment to change it you don’t get a decree of nullity.

G v G [1924] –incapacity can be psychological as well as physical, so husband could have a decree of nullity due to her inability (for psychological reasons) to consummate.

Singh v Singh (1971)– no decree of nullity as it was not psychological she just didn’t like the idea of the consummation.

W v W (Nullity:Gender) [2001] – intersex people can select for themselves which sex they want to be and have surgery to be only that gender and then consummate as that gender.

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Incapacity continued

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High Court has decided that where protection is needed for people who have capacity it can be given this protection under the inherent jurisdiction.

Re SA (Vulnerable Adult with Capacity: Marriage) [2005] – 18 and deaf but passed the test for capacity but she didn’t understand the implication of this particular marriage planned for her and so needed protection as a vulnerable adult. HC made an order prohibiting her being removed from the country without their permission (as marriage was due to take place in Pakistan).

Westminster City Council v C [2008] – lack of capacity meant the marriage was voidable (CA), they said the High Court could not just say a marriage was void because they didn’t like the look of it.

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s12(1)(b) - wilful refusal

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Horton v Horton [1947]– test for wilful refusal: a “settled and definite decision, come to without just excuse”. Two parts: 1) deciding not to consummate, 2) no just excuse. Focus on second element in case law – what counts as a good excuse?

Ford v Ford [1987]– married while in prison and refused to have sex on private visits in prison as it was against prison rules so that didn’t count as wilful refusal but when he was allowed out to see her and refused that was wilful refusal.

Potter v Potter (1975)– husband refused to consummate after being refused by his wife twice and she was not granted a decree of nullity – he had a good reason for refusing.

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Wilful Refusal continued

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Kaur v Singh [1972]– Sikh couple had a civil ceremony but according to their religion were not married until they had a religious ceremony which was the husband’s responsibility. He refused and she got a decree of nullity because of his wilful refusal to consummate.

A v J [1989] –couple married but wife then refused to go through with religious ceremony. That can be wilful refusal as consummation is a broad concept – it has been made to contemplate scenarios where it is not considered directly.

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s12(1)(c) - that either party to the marriage did not validly consent to it, whether for reason of duress,mistake, unsoundness of mind or otherwise

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Duress:

Singh v Singh (1971)– young woman got married under pressure from her parents to marry a particular man but court said it was not duress, merely pressure so marriage was valid.

Hirani v Hirani (1982)– 19 year old girl married a Hindu man her parents had chosen for her as they had said she had to marry him or leave home. She was successful in duress as the CA said duress was established if “the pressure…is such as to destroy the reality in consent and overbears the will of the individual”.

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Forced marriage cases:

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Singh v Singh (Kaur)[2005] – forced marriage as daughter was taken to India and her mother took her passport and said she would destroy it unless she married an Indian man. It was dealt with under s12(1)(c) saying there was duress.

Forced marriages = can use the Forced Marriage Civil Protection Act or s12(1)(c) (duress).

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s12(1)(d) - mental illness

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Marriage can be annulled if they are mentally ill as defined by the Mental Health Act 1993. Need a mental health disorder but also the mental disorder must mean you are unfit for marriage (Bennett).

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S12(e) if at the time of the marriage the respondent is suffering from venereal disease in a communicable form

S12(f) if the respondent was pregnant by another person

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For both of these it must not be known at the time of the marriage. s12(1)(f) cannot be used if it is the woman finding out that the man has got someone pregnant.

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Further grounds:

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s12(1)(g) - an interim GRC had been issued after the marriage

s12(1)(h) - one party had changed gender before the marriage

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s13 - bars to relief where marriage is voidable

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1. Appropriation - where one person knows that there is a problem with the other person but says impliedly or expressly that they don't mind

2. It has to be shown that it would be unjust to a respondent to grant a decree

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There is also a 3 year time limit on applying for a decree but there is an exception to that in s13(4):

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- petitioner is suffering from a mental disorder as defined by the Mental Health Act

- judge must consider it just having regards to all circumstances to grant leave for proceedings

In suitable cases the courts inherent jurisdiction can be used even when the three year time limit is up:

SH v NB [2009] - forced marriage so court used their inherent jurisdiction to declare it not valid even though the time limit was up.

Re P (Forced Marriage) [2010] - similar situation and the court used the inherent jurisdiction again to say the marriage was not recognised as valid in the UK and got an order to get her returned from Pakistan.

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Non-Marriage

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Differs from a void marriage on that parties cannot apply for financial relief under the MCA 1973.

Hudson v Leigh [2009] - non-marriage is where for whatever reason the events which happen to fall short of the formal requirements and the failure to comply is great that it can't even be a void marriage. Four things to consider as to whether it is a marriage or a non-marriage:

1. Did the marriage purport to be a marriage?

2. Did it have enough of the hallmarks of marriage?

3. Did the key participants believe, intend and understand this would lead to a valid marriage (especially the officiating official)

4. Reasonable perceptions and beliefs of people in attendance

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Non-Marriage (2)

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Al-Saedy v Musawi [2010] - non-marriage. It was a gathering in a London flat in which the parties entered a religious agreement enabling them to live together and have children. Presumption of marriage couldn't apply as there had not been a sufficient cohabitation period and there was positive evidence that no valid ceremony had taken place.

El Gamal v El Makatoum [2011] - woman married a member the Dubai royal family in their flat but it did not meet any of the requirements from Hudson v Leigh - ceremony did not purport to be a marriage, it bore very few of the hallmarks of marriage, at least one of the key participants did not intend to enter into a marriage valid in England and Wales and there was no evidence that those in attendance believed they were witnessing a valid marriage ceremony.

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Non-Marriage (3)

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Dukali v Lamrani [2012] - non marriage as the place was not licensed, no notice and despite the intention of the parties to enter into a valid marriage the existence of many failures to comply with formalities meant that their intention could not change a non-existent marriage into a valid one. Presumption of marriage could not apply as Holman J felt that cohabitation of "a longer period than seven or eight years must be required".

MA v JA [2012] - despite the Imam not being licensed for weddings, no notice and no registration it was recognised as valid as the point of formalities is to prevent an abuse of the system but here it was merely an oversight and the couple were not to blame. Both wished it to be valid and it was declared valid as they did not intentionally flout the requirements. Despite the Imam not believing or intending to give rise to a marriage recognised under English law it was still valid - shows the intentions of the parties is more important than that of the celebrant.

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Non-Marriage (4)

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Dr Ruth Gaffney-Rhys says it seems that the requirement from Hudson v Leigh that the ceremony have the hallmarks of marriage is the most important as all the other factors were satisfied in Dukali v Lamrani but it was still held to be a non-marriage.

But intention alone is insufficient (El Gamal and Dukali) so it seems that this could lead to injustice as insufficient attention is paid to intention.

Non-Christian/non-Western marriages are more likely to be non-marriages due to unawareness of the requirements.

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Non-Marriage (5)

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Chief Adjudication Officer v Bath [2000] - she found out her marriage was defective after her husband died. Court said it was valid as no fraud or abuse and they're not going to be too concerned with filling in the correct forms etc. Presumption of marriage as they'd lived together for 37 years. Insufficient evidence to prove that the building and celebrant were unregistered.

Assad v Kurter [2013] - marriage was only void as they had not got the necessary permission from the Syrian authorities to marry a non-Syrian.

K v A - marriage wouldn't have been valid in Pakistan as it was between a Muslim and non-Muslim but UK found it was valid as they acted like they were married, thought they were so there is a rebuttable presumption that they are married.

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Civil Partnerships and Nullity

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Pretty much the same substantive law, but contained in the Civil Partnership Act 2004:

- s3 - reasons a civil partnership is void

- s50 - voidable civil partnerships (almost identical to s12 MCA)

- s51 - provisions similar to s13 MCA

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Cohabitation

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Burns [1984] - lived together for 19 years, has kids and she called herself "Mrs Burns" but she had no claim to the property in family law when they split - she would have to resort to property law.

Kernott v Jones [2011] - bought a house together in 1985 and were joint tenants in equity 50/50 split. 8 years later he left and she continued to pay all the mortgage and bills. She'd also paid all the deposit. Property given to her on 90/10 split.

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Cohabitation (2)

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If a cohabiting relationship ends in death of one of the parties the survivor can seek reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

Cohabitants often have to rely on the general law, and some statutes merely require that they live in the same "household" which is not merely demonstrated by living together: Ward LJ in Gully v Dix [2004] - "they will be in the same household if they are tied by their relationship...the public and private acknowledgment of their mutual society, and the mutual protection and support that binds them together..."

In Fitzpatrick he was held to be a member of the family (for the purpose of tenancy succession legislation) of his deceased same-sex partner whom he'd been cohabiting with for 18 years.

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Cohabitation (3)

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Cohabitants can be recognised as "living as man and wife" in certain circumstances and the criteria for this comes from Woolf J in Crake v Supplementary Benefits Commission - "whether they are members of the same household; then there is a reference to stability; then there is a question of financial support; then there is the question of sexual relationship; the question of children; and public acknowledgment..."

CA said parties must have made a "lifetime commitment to permanence" and the relationship must be "openly and unequivocally displayed to the outside world" for them to be considered as living as man and wife in the context of tenancy succession.

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Debate and Reform: Cohabitation

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• perhaps instead of giving them the rights they think they have we should educate them about the legal differences between marriage and cohabitation.

• but people who choose to cohabit have rejected the obligations associated with marriage and it would be unjust to impose these on them.

• would giving cohabitants more rights undermine marriage?

• should they be brought within the MCA 1973 as it would enable the court to protect the economic vulnerability experienced by many cohabitants and their children on separation but also differentiate between those types of relationships and short term, childless ones.

• would that bring the law in line with people's expectations and social practices?

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Debate and Reform (2): Law Com's Recommendation for Cohabitants

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Statutory scheme providing financial relief between "eligible" cohabitants without any need to opt in:

• "eligible" if living as a couple in a joint household and either have a child together or had lived together for a minimum duration (set by statute, between 2 and 5 years)

Potential to opt out at any time and make their own binding arrangements which would be enforceable if in writing, signed and made clear their intention to disapply the statute:

• court keeps ability to set aside an otherwise binding opt out of enforcement would cause manifest unfairness

Court can grant the same type of orders as under MCA 1973 but should be focused on addressing the economic impact of contributions arising from the parties' relationship and made by the applicant to the parties' shared lives or welfare of family members

• an applicant would have to prove that following separation the respondent retained an economic benefit and the applicant sustained an economic disadvantage

Criticisms: some wanted the scheme to be the same as for married couples, some opposed any change and some promoted other schemes. The complexity was criticised.

Should we stand back and allow parties their freedom to make their own arrangements? Or make structural changes in order to reduce the economic disparities experienced on relationship breakdown?

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Debate and Reform (3): should Civil Partnership be extended to carer/familial relationships?

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Some argue it should, due to Burden v UK where two sisters wanted to become civil partners in order to avoid inheritance tax on the home they co-owned. But they were refused and some commentators argue this is unfair as the same would not apply to female civil partners.

However, doing this would seem to lump same-sex relationships in a largely asexual category, demeaning the sexual side of their relationship which has already been done with same sex marriage as the law likes to ignore sex in same-sex relationships.

The HOL attempted to introduce a carer provision into the Civil Partnership Act when it was still a bill but the government refused because it defeated the purpose of the act. And yet they still refuse to recognise that a civil partnership is a sexual relationship.

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Debate and Reform (4): why do consummation and adultery not exist in same sex marriage? From Lucy Crompton's article.

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Parties to same sex marriage should be recognised as part of a sexual relationship in the same way as parties to an opposite sex marriage are in order for there to be true equality. This is the reason behind the belief that the legal position on consummation of same sex marriage should be changed. Or indeed that consummation as a ground for voidable marriage should not exist anymore (Rebecca Probert).

Adultery: instead of leaving the difficulty to the courts to decide same sex adultery cases the government decided to abolish it completely which leads to the bizarre outcome that gay couples can only rely on straight sex in their adultery claims and straight couples cannot rely on gay sex in theirs.

It is difficult to view this as anything other than a demonstration of the domination of heterosexual sex.

The fact that adultery does not exists in same sex marriage almost seems to suggest that the same ideals of commitment and faithfulness do not exist in same sex marriage in the same way as opposite sex marriage.