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Marriage Civil Partnerships Cohabitation Notes

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This is an extract of our Marriage Civil Partnerships Cohabitation document, which we sell as part of our Family Law Notes collection written by the top tier of Oxford students.

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MARRIAGE, CIVIL PARTNERSHIP, AND COHABITATION WHAT DOES / SHOULD THE LAW VALUE IN ADULT RELATIONSHIPS?-

Herring, 'Making Family Law More Careful' in VCFL It doesn't do the law any credit or benefit because it pays so much attention to sex and gender It seems a bit "beneath" us from basing marriage etc on sex and gender, shouldn't we be more concerned with the emotional characteristics of a marriage? It shouldn't be defined by "objective" or scientific-based terminology i.e. just because I am a woman and I know someone who is a man and we are both over the age of 18, does not mean we should get married, obviously. Let's look at the things which make marital relationships special and worth enshrining in a particular way, not just gender and sex Lose sex for a week? We're fine. Lose care for a week? Society grinds to a halt. So why aren't we talking more about care when we're talking about marriage, and the extent of/ proof of care between the individuals involved

REQUIREMENTS FOR MARRIAGE (NULLITY)Matrimonial Causes Act 1973, ss 11-13, 16 (as amended by the Gender Recognition Act 2004 and Marriage (Same Sex Couples) Act 2013)

Ceremony--Hudson v Leigh [2009] 3 FCR 401 Where what has happened is so far from our understanding of what marriage is/ should be, the marriage will not be deemed to legally exist (i.e. a marriage ceremony - and marriage in general? - has to be something which is conceivably and reasonably recognisable as a marriage ceremony, if not, it's not a valid marriage) Woman was a devout Christian but man was atheist of Jewish origin so did not want a Christian marriage They decided to compromise, they went to South Africa for her part of it to have what she wanted, but what they did was avoid the specific wording required to make a binding marriage in South Africa with intention to go back to England and have a civil marriage when they got back Was this a legal marriage?
Bodley J said no and gave guidance as to the four most important things which should be considered when concluding whether or not it is a marriage or not (though this list is not exhaustive) o "(a) whether the ceremony or event set out or purported to be a lawful marriage; o (b) whether it bore all or enough of the hallmarks of marriage; o (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and o (d) the reasonable perceptions, understandings and beliefs of those in attendance." MA v J [2012] EWHC 2219 (Fam) Intention that both individuals wanted to be married and there were enough hallmarks of marriage (e.g. ceremony, solemn intention, living together since marriage) that despite the failure of the conductor of the marriage to register it meant that the marriage was valid Muslim couple who wanted marriage to be recognised in English law Sought out mosque they knew which was registered for civil marriages Had ceremony, witnessed, used right words Unknown to person conducting the marriage that they wanted it to be valid so didn't register the marriage It was only after 8 years that they realised they didn't have a 100% valid marriage What did they have?
Because in good faith they had entered into the arrangement, it had to be either a marriage or a non-marriage It was held that it was valid

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There was enough evidence to make the marriage valid and it would not be in the public interest for marriages to be avoided easily Consent-

Re RS (Capacity to Consent to Sexual Intercourse and Marriage) [2015] EWHC 3534 (Fam) It is not enough to understand the formalities of wedding, but need to recognise the duties and responsibilities which normally attached to marriage (Sheffield CC v E) If individual cannot consent to sexual relations i.e. lacks capacity, it is unlikely they will be able to consent to marriage, as sexual relations form a fundamental part of marriage PC v York [2013] EWCA 748 (discussed Wall and Herring [2013] CFLQ 471) woman with learning difficulties befriended awful convict and she wanted to marry him (he had a strong history of domestic violence) o Did she understand marriage? Yes, she understood the central issues o Did she understand marriage to him? No o Man was not due to be released from prison so she couldn't cohabit with him, but he didn't understand this - final twist in reasoning, it hadn't been shown that she couldn't understand this because of her learning disability, could have just been that she was "blinded by love"

Gender Recognition Act 2004
- Gender Recognition Act 2004 (as amended by Marriage (Same Sex Couples) Act 2013)-Carpenter v Secretary of State for Justice [2015] EWHC 464 (Admin) This was an unsuccessful HRA-based challenge to the requirements of evidence relating to medical treatment in gender-change cases Requiring a transgender individual who had undertaken or who was planning to undertake, surgery as a means of physically transitions, to bring in medical evidence to present in their application for legal gender reassignment did not constitute a breach of Art 12 HRA While obviously the individual could bring valid criticisms like "why the fuck should I have to bring in medical proof that I've transitioned/ I'm transitioning, when the next applicant might not be planning physical surgery and therefore won't have to go through a stressful process of providing evidence i.e. discrimination Forcing me to prove my experiences/ mindset is a breach of Article 12 rights - asking me to bring all this in is too invasive?
"I've had surgery and I'm required to show all these details about my surgery to the panel but the next person after me might not have had the surgery obviously can't show that because they haven't said it" court said it's up to you

Intersex People
- W v W (Nullity: Gender) [2001] 1 FLR 324
- Woman brought petition for divorce but husband responded with a request for nullity on the basis that wife was not a woman but was in fact a "physical intersex"
- On this basis the court found that where chromosomal, genital and gonadal tests rendered different and incompatible/ inconclusive results, that further characteristics e.g. psychological and hormonal could be considered
- Here, these secondary tests led to the conclusion that the intersex person was, for the purposes of marriage, a woman and the husbands application for a decree of nullity was therefore rejectedChau and Herring, 'Defining, Assigning and Designing Sex' (2002) IJLP&F 327

Marriage between Relations

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The Marriage Act 1949 (Remedial) Order 2007 No 438

Forced MarriageA Forced Marriage (Civil Protection) Act 2007 (inserting Part 4A into FLA 1996) An Act to make provision for protecting individuals against being forced to enter into marriage without their free and full consent and for protecting individuals who have been forced to enter into marriage without such consent; and for connected purposes.A Local Authority v N [2007] Fam Law 211 There was no need to make an order regarding a young girl who had been forced into a marriage with a man who had beaten and raped her, because she had now been returned to her parents who were providing adequate protection for her o Have to ask though, how appropriate can that protection be if they'd forced her into the marriage in the first place?Westminster CC v IC [2008] EWCA Civ 198 Man suffering autism and mental developmental difficulty had been married by his parents to a woman in Bangladesh, over the phone It was held that the marriage was not to be recognised in UK, as the man did not have the capacity to consent to sexual relations in the UK, so why would he be entitled to consent to marriage?-

Anti-Social Behaviour, Crime and Policing Act 2014, s120-122 S120: offence of breaching a forced marriage protection order S121-122: offence of forced marriage S122A: anonymity of victims of forced marriage

SAME SEX COUPLES: CIVIL PARTNERSHIP AND MARRIAGECivil Partnership Act 2004 An Act to make provision for and in connection with civil partnership. Difference in pension rights Introduced as an alternative to marriage, only available to same sex couplesMarriage (Same Sex Couples) Act 2013 Gender is written into the structure of UK marriage law but in an ever-developing society, we have to work towards eradicating the weight placed on this aspect Intersex and non-binary individuals will have difficulty entering into any legally recognised conjoining of interests-

Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin) Heterosexual couple in committed relationship with child but did not want marriage They want a civil partnership and contested that it was contrary to s4 HRA that they were not entitled to one This application was originally refused and that while there may be future consultations on the role of civil partnerships, they would first wait to see how the availability of same-sex marriage affected them Court held that marriage was available to them and that they could talk advantage of this Held that no there was no obligation to extend marriage to same-sex couples and no obligation to extend civil partnership to heterosexual couples

----This appeal was heard in Feb 2016 in CA and said took a rights-based approach with all 3 judges saying they agreed that Article 8 rights had been breached, however it was held that the interpretation was correct in that the couple were not entitled to have a heterosexual civil partnership (SC appeal?) On appeal in SC it was, obviously, concluded that civil partnerships are not open to heterosexuals o Would this change in the law be a good thing? Yes we want equality for law, but would having two, essentially equivalent, status relationships be pointless? Or would it be a welcome move away from marriage?
o Obviously such a move is only welcomed in the view of some people e.g. me, so would it undermine the sanctity of, I suppose, civil partnerships?
o Perhaps the preservation of civil partnerships as purely for same-sex couples is something of a reparation for the oppression of queer individuals in the past, so now giving them as much choice as possible? But also the failings of the law to allow heterosexual couples into civil partnerships might be good for queers but bad for women i.e. heterosexual women are still forced to buy into this one, historically extremely oppressive, structure which revolves around sex and has allowed for the oppression of women since time in memoriam: what is the message which is being sent by the forbidding of heterosexuals to enter into civil partnerships?
Isle of Man has permitted opposite-sex civil partnerships Also what about the historically heteronormative ideals of marriage: perhaps queer people in "hetero-passing" relationships e.g. bisexual men and women in relationships with each other, want the opportunity for representation of their relationship but not though such a historically heteronormative and damaging institution such as marriage?
MPs debated a Bill on mixed-sex civil partnerships in January, with overwhelming numbers of MPs showing support for the change and the government spokesperson raising only a few limited administrative concerns In CA appeal court found that appellants here were right and that their ECHR rights are likely being breached (basically concluding I guess that the courts personally cannot change the law, definitely the best route for this to go is through Parliament because now the courts have found that there's no ECHR rights, there's no conflict and needs to be legislative change). Only lost CA appeal on technicality that government should be allow more time to make a decision (lost 2:1, not landslide!) "over 3 million mixed-sex couples, with two million dependent children, cohabit in the UK but obviously lack the requisite financial and legal security that comes with a status relationship Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage, (Palgrave, 2012) Modern law has adapted to see marriage as revolving around interdependency, sexual and emotional intimacy, and companionship Need to balance liberation of LGBTQ community by offering them the right to marry, with the rights of women and feminist issues: o Is it right for LGBTQ to be offered marriage? Or should we be more focussed on removing marriage as an institution altogether? Are efforts to expand the scope of marriage to queers exploiting LGBTQ community by using them as a distraction from the larger issues of marriage?
Katherine O'Donovan has conceptualised hetero penetrative sex as the "legally approved form of sexual expression" because of the consummation element of marriage It's not just broad patriarchal oppression but capitalist patriarchy oppression because of the extent to which a capitalist society full of capitalist men benefits from reinforcing the misogynistic stereotypes of marriage which force women into the nurturing roles, i.e. capitalism benefits from exploitation of women's expected labour within the family o Women's unpaid labour at home reproduces conditions necessary for capitalism through enabling or supporting men's paid work, and stabilising economy through consumption work
~PS42,000 a year (Insure.com valuation of stay-at-home mum) has been estimated as the value of women's labour in the home (i.e. how much it would cost you to pay someone to do all the jobs women do for free e.g. cooking, cleaning, childcare, etc) o note: domestic services do not allow women to acquire a rights-style interest in the very home they have made... what the fuck lol

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