Family Last Minute Revision Notes

RELATIONSHIPS

• Many attempts have been made to define ‘a family’ but the range of couples and larger groups, with or without children, who may be included or excluded, makes it difficult to find a widely acceptable definition.

• Marriage was defined in Hyde v Hyde (1866) as ‘the voluntary union for life of one man and one woman to the exclusion of all others’.

• A civil partnership is a relationship between two people of the same sex which is formed when they register as civil partners of each other under the Civil Partnership Act 2004.

• There is no such thing as a ‘common law marriage’ and those living together acquire virtually no rights in relation to each other, regardless of the length of their cohabitation.

• Formalities have to be complied with both to form and to end marriage and civil partnership; no formalities govern the start and end of cohabitation.

• Parties to a marriage or civil partnership can acquire rights over property during the relationship by their contributions, other than money, towards the relationship.

• Cohabitees generally only acquire rights over things to which they contribute financially. They may be able to claim rights over property on the basis of trusts law or proprietary estoppel.

• There are often calls to reform the law in relation to cohabitants. Joint ownership of property is an issue of particular concern.

Should cohabitees be entitled to the same property and other rights as married couples and civil partners? If this were so, would there subsequently be any purpose to marriage and civil partnership?

It may be useful to consider the reasons why the law protects marriage / civil partnership. For example, is it a mark of commitment? Is it about certainty? As part of this exercise, consider whether there is a difference between cohabitees and married couples / civil partners. See, for example:

Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307 (2007)

Barlow and Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ (2010) CFLQ 328

Although civil partnerships confer virtually all the same rights as marriage, it is worth considering whether marriage and civil partnerships serve the same purpose. Consider Wilkinson and Kitzinger v Lord Chancellor [2006} EWHC 2022 (Fam) and Burden and Burden v UK [2007] 1 FCR 69. You may also want to consider Glennon’s article ‘Displacing the ‘conjugal family’ in legal policy – a progressive move?’ [2005] CFLQ 141. Further, what do you think of the Government’s decision not to extend civil partnerships to heterosexual couples (https://www.gov.uk/government/consultations/consultation-on-the-future-of-civil-partnership-in-england-and-wales)?

Discuss the differences in the legal rights of those who are married/civil partners and those who are cohabiting. The key things to mention are rights to occupy the family home under s 30 Family Law Act 1996, provisions on domestic violence, rights and obligations relating to children, maintenance obligations and rights to property on relationship breakdown and inheritance matters.

Consider the arguments for and against giving rights to cohabitants. Arguments in favour of reform include that people are unaware there are no rights attached to "common law marriage" and may rely on this to their detriment, and that the law currently protects the stronger person by putting the onus on the weaker party to do something about their situation. Lady Hale’s comments in Gow v Grant are worth considering in this context. Arguments against reform focus on the idea that giving cohabitants rights would undermine marriage, that people have the choice to marry/enter into a civil partnership and that some people deliberately choose not to formalise their relationship because they do not want to confer rights on their partner.

Conclude with your views on whether the law should be reformed and, if so, whether this would have any impact on marriage and/or civil partnerships. Stronger answers will consider the options for how the law could be reformed. See, for example,

Miles, Wasoff and Mordaunt, ‘Cohabitation: Lessons from Research North of the Border?’ [2011] CFLQ 302

NULITY

•Nullity is a way of ending marriages and civil partnerships.

•Once annulled, the marriage or civil partnership is treated as if it had not occurred.

• English law distinguishes between void marriages/civil partnerships and voidable ones.

• Void means the marriage/partnership was never a valid one. There is no need for a decree although the parties may apply for one if they wish to obtain a financial, pension, or property order.

• Voidable means that the marriage/partnership remains a valid one until the parties obtain a decree to annul it. It becomes void after the decree.

• The law of nullity in relation to marriages is set out in the Matrimonial Causes Act 1973.

• The law in relation to civil partnerships is set out in the Civil Partnership Act 2004.

‘It is sometimes suggested that there would be much to be said for abolishing the concept of the voidable marriage (with the attendant full hearings and sometimes unpleasant medical examination) and allowing the parties to seek a divorce based on the breakdown of their marriage...’ (Cretney, Principles of Family Law, p 84).

In light of this comment, do you think the law of nullity should be reformed?

The law of nullity is less important today than it was in the past with divorce being more readily available and more socially acceptable. Less than 1% of marriages and civil partnerships are terminated by nullity. This in itself may add to calls for the law to be reformed or even abolished. Note that the Law Commission reviewed the law in 1970 and concluded that the law should be retained because some religious groups see a distinction between nullity and divorce, and there should be a distinction between marriages which end with or without moral blame. Also at the time a couple had to be married for three...

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