30 SEPT 2015Dr Sara Ramshaw

FORMATION OF MARRIAGE / CIVIL

PARTNERSHIPS

Aims of LectureFORMALISED RELATIONSHIPS

• Formalised versus unformalised relationships

• What is marriage?• How are marriages formed?• How are civil partnerships formed?• Same sex marriage• Further debates/issues

•What is marriage?

• ‘I conceive that marriage, as understood in Christendom,

may ... be defined as the voluntary union for life of one man and one woman, to the

exclusion of all others.’

(Lord Penzance in Hyde v Hyde [1866] LR I P & D 130)

• Is this definition still accurate?• Consider: No longer for life –

prevalence of divorceChristian conception of marriage (to beget children) no longer dominates

Only between a man and a woman? – possibility of same sex marriage

Marriage:

OR

?

Marriage:

OR

?

Thorpe LJ in Bellinger v Bellinger [2001] described marriage as: 

‘…a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligation.’

Creation of a valid marriage

(1)Capacity

Re E (An Alleged Patient); Sheffield City Council v E and S [2005] 1FLR 965

Test for capacity is whether person is able to understand the nature of the marriage contract, and whether s/he is mentally

capable of understanding the duties and responsibilities normally attached to

marriage (Mumby J).

Capacity

M v B, A and S (By the Official Solicitor) [2006] 1 FLR 11

High Court can invoke its ‘inherent jurisdiction’ to protect vulnerable adults.

(2) Marriage must not fall foul of various grounds in section 11 of the Matrimonial

Causes Act (MCA) 1973 – otherwise regarded as void (see Week 3 lecture) .

Religious v

Civil Marriage

Where?

(1)Preliminary formalities

For all non-Anglican marriages (including civil marriages), parties must first obtain a superintendent registrar’s certificate giving them approval to marry. Various requirements need to be satisfied before this can be

granted as laid down in the Marriage Act 1949.

Church of England marriages can only be solemnised after the publication of banns, that is, an announcement of the intended marriage

made by the vicar or rector on 3 successive Sundays in the parish church of each of the parties.

(2)Ceremony

Civil ceremonies can take place at a register office or ‘approved premises’ once approval of the superintendent registrar is obtained.

‘Approved premises’ are premises approved by the local authority for the purposes of conducting civil marriages, and include premises such

as hotels, stately homes, castles, etc.

A civil ceremony may be followed by a religious ceremony, but it is the civil ceremony that creates the marriage. At the ceremony, the parties must declare that there are no lawful impediments to the marriage and

must exchange vows. At least 2 witnesses are required.

Religious marriages are celebrated according to the rites of the particular religion and in the

presence of at least 2 witnesses. 

Failure to comply with the formalities required for creating a valid marriage will usually mean

that the marriage is void.

Civil Partnership Act 2004

 In 2001, the Netherlands became the first country to legalise same-sex marriage

Followed by Belgium, Canada, South Africa, Spain and US State of Massachusetts

UK followed the example in other jurisdictions by introducing a civil registration system for same-sex couples

Grainne Close: ‘This is for all the people who went before us ...’

Shannon Sickles : ‘... and all the people who would like to come after us’

‘…people felt proud that Northern Ireland was in the media for something positive, after years and years of negative media coverage all over the world.’ (Sickles and Close)

 Effect of CPA 2004 Give same-sex couples the opportunity

to formalise their relationship in law and acquire marital-like rights and duties by civil registration

Also, extended every piece of legislation which conferred rights on 'those living together as husband and wife' to include 'those living together as civil partners'

SIMILARITIES

 

The same property rights as married opposite-sex couplesThe same exemption as married couples on inheritance tax, social security and pension benefitsThe ability to get parental responsibility for a partner’s children Responsibility for reasonable maintenance of one’s partner and their childrenTenancy rightsFull life insurance recognitionNext-of-kin rights in hospitalsA formal process for dissolving partnerships akin to divorceEtc. 

A civil partnership is formed when the couple register their partnership in accordance with the Act

The civil partnership document must be signed by the parties, two witnesses and a registrar

It is a binding relationship – terminating only on death, dissolution or annulment

DIFFERENCES

 

•Non-consummation and adultery•Formalities at start, i.e., signing of register, not religious vows (but in February 2011, ban on civil partnerships in places of worship lifted)

Despite similarities, civil partnership is NOT a marriage

Is this discriminatory?

2006Wilkinson v Kitzinger

▪Court rejected claim that denying marriage to same-sex couples is discriminatory▪Why?

Sir Mark Potter:

Preserving the heterosexual definition of marriage did

not make same-sex couples ‘inferior’, it just recognised

their ‘differences’ (para 121)

It affirms the status of formalised relationships

Modelled on marriage (assimilationist policy)

Do martial-like obligations suit same-sex relationships?

Avoids more fundamental critique of the assumed values and principles enshrined in marriage - a missed opportunity?

Is it a symbolic victory for same-sex couples?

Registration will lead to greater social acceptance of same-sex relationships and thus, ultimately, cultural change (DTI, Women & Equality Unit, Civil Partnership: A Framework for the Legal Recognition of Same-sex Couples, June 2003, para. 1.5)

Do you agree?

What does CPA 2004 say about the direction of family law policy?

State preference for formalised relationships?

 What about unmarried opposite-sex couples OR unregistered same-sex couples?

Diduck notes that the 'regulation of legal burdens and benefits to unmarried partners relative to their married counterparts has proceeded … on an ad hoc or piecemeal basis…'

Carl Stychin, ‘Not (Quite) a Horse and Carriage: The Civil Partnership Act 2004’ (2006) 14 Feminist Legal Studies 79.

Carl Stychin, ‘“Las Vegas is not where we are”: Queer Readings of the Civil Partnership Act’ (2006) 25 Political Geography 899.

Marriage (Same Sex Couples) Act 2013

(17 July 2013)

In October 2011, at a party conference in Manchester, Prime Minister David Cameron urged reluctant Tory MPs and members to support gay marriage.

‘And to anyone who has reservations, I say this: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. … So I don’t support gay marriage in spite of being a Conservative. I support gay marriage because I am a Conservative.’ (David Cameron)

Government’s Equality Office’s Equal civil marriage: a consultation (March 2012)

3 principles for change: 1. Remove the ban on same-sex

couples being able to marry through civil ceremony.

2. Make no changes to how religious organisations solemnise marriages.

Allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.

The Marriage (Same Sex Couples) Act came into force on 13 March 2014.

Enables same sex couples to marry either by way of a civil ceremony or, provided the religious organisation concerned is in agreement, on religious premises.

The first same sex marriage took place on 29 March 2014.

DIFFERENCES

 

•Non-consummation and adultery (mirrors law on civil partnerships).•Legislation does not extend the common law presumption that a child born to a woman during marriage is the child of her husband.•Same-sex married couples given fewer pension inheritance rights (mirrors occupation pension rights of civil partnerships – only based on contributions since 2005). A legal challenge on this issue was heard by the C of A in late June 2015. For more information, see Briefing Paper, Pensions: civil partnerships and same-sex marriages, published 10 July 2015.

On 28 April 2015, the NI Assembly voted to reject legalising same sex marriage (despite overwhelming support for same sex marriage by majority of public).

Same sex marriages from other jurisdictions are treated as civil partnerships in NI.

‘In order for us to exercise our right to marry, we would have to leave NI. We’ve made a life for ourselves here in Belfast, and we should have the same rights afforded to us as other citizens and be able to make a choice about marriage for ourselves’

Sickles and Close

On 26 June 2015, Mr Justice Treacy ruled that Shannon Sickles and Grainne Close, along with Charles and Henry Flanagan-Kane, have the right to have the same sex marriage ban subjected to judicial review (probably November 2015).

FURTHER QUESTIONS/DEBATES

Does marriage deserve the value placed on it and its

privileged legal position in UK society?

Rosemary Auchmuty challenges the desire to seek access to marriage:

‘… formal equality claims are not always progressive. … [W]hether you see marriage as an oppressive bastion of male power, as the second-wave feminists did, or simply as outmoded and irrelevant, as many contemporaries do, the goal should surely be to get rid of it, or at least to let it die out of its own accord – not to try and share in its privileges, leaving the ineligible out in the cold.’

(Auchmuty 2008: 497)

ARGUMENTS FOR (SAME-SEX) MARRIAGE

ARGUMENTS FOR (SAME-SEX) MARRIAGE

ARGUMENTS FOR (SAME-SEX) MARRIAGE

ARGUMENTS AGAINST (SAME-SEX) MARRIAGE

ARGUMENTS AGAINST (SAME-SEX) MARRIAGE

Should UK society be encouraging other kinds of formalised relationships?

Heterosexual Civil Partnership

Burden v United Kingdom (2008)

Ferguson and Others v United Kingdom (2011)

‘For some people, civil partnerships are marriage without the history of sexism and without the traditional

trappings of what a wedding is supposed to be. It is a simple, more

informal, modern form of relationship recognition.’

(Peter Tarchell, ‘Equal Love’ campaign)

Dr Sara Ramshaw

• Office Hours: TBC• Room: Amory 031• E-mail: s.ramshaw@exeter.ac.uk • Phone: x5143