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Summary Marriage in Family Law

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  • Course
  • Law
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  • Brunel University London
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  • Family Law

Revision notes on marriage in Family Law. Includes statistics, key statutes/cases, sociological views on marriage and explanation of the different types of marriage (i.e. void, voidable, non- marriage and same-sex marriages) Also includes a comparison of marriage v civil partnerships and marriage...

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  • Unknown
  • June 16, 2020
  • 9
  • 2018/2019
  • Summary

Subjects

  • law
  • family law
  • marriage
  • sociology

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  • Brunel University London
  • LLB Law
  • Law
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Marriage
Statistics
• ONS 2015 – 23.8 million people married – 50.6% of the population aged 16+
• ONS 2015 – just under 40% of population single
• Estimated that the married population will fall to 42% by 2033
• In 1930, 90% of men and 94% of women were married by age 40
• In 1970, 63% of men and 71% of women married
• 2014 – 33% of marriages were 2nd or further marriages for at least one of the
parties – people are more willing to divorce and re-marry
• ONS 2016 – 72% of marriages were civil ceremonies – move away from
religion
The Meaning of Marriage
• There is no such thing as a common law marriage – i.e. there are no rights for
people living together unless specifically given by legal status and/or
legislation/case-law
• Difficult to define the meaning of marriage as it is down to whatever the
couple takes it to mean
• Martha Fineman: “marriage, to those involved in one, can mean a legal tie, a
symbol of commitment, a privileged sexual affiliation, a relationship of
hierarchy and subordination, a mean of self-fulfilment, a social construct….”
• Rosemary Auchmuty – suggests marriage is old-fashioned and based on
sexist assumptions. People feel they need to justify why they are getting
married these days, rather than having to explain why they are not
• Functional approach to marriage – children are the heart of marriage, children
are best raised by married couples
• Psychological approach – people feel a need to marry for a sustained
association with another
• Political approach – the role of marriage within wider society – Lenard
described marriage as a ‘public form of labour relationship between men and
women, whereby a women pledges for life her labour, sexuality and
reproductive capacity, and receives protection, upkeep and certain rights to
children
• Religious approach – some religions teach of a spiritual reunion between
spouses of marriage, with a spouse’s love reflecting God’s love
Legal Definition of Marriage
• Hyde v Hyde and Woodhouse [1866] – “the voluntary union for life of one man
and one women to the exclusion of all others”
• Problems with Hyde – its not possible to enter a marriage involuntarily, not for
life as it can be ended by divorce, its characterised by sexual unfaithfulness,
and ignores homosexual marriage

, • More recent definition in Bellinger v Bellinger [2001] by Thorpe LJ: “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 obligations”
• Thorpe LJ does not stipulate that the parties must be of the opposite sex or
that marriage is for life – only element he kept of Hyde is that the marriage
must be voluntary
• However, Lord Millet in Ghaidan v Godin-Mendoza [2004] demonstrated a
more traditional view of marriage: “marriage is the lawful reunion of a man and
a women. It is a legal relationship between persons of the opposite sex”
• Interesting cases:
- Vervaeke v Smith [1983] – it is possible for a couple to be legally married
but never to have lived together or had any kind relationship
- R (On the Application of the CPS) v Registrar General of Births, Deaths
and Marriages [2003] – the CPS sought an order preventing a marriage
between a man charged with murder and the women intended to be the
main prosecution witness at his trial. It was argued that the marriage was
being entered into so that she would not be a compellable witness. The
Court of Appeal refused to grant the order as it would not examine the
reason why the couple wanted to marry and consider if it was a valid one
• The law on marriage merely provides parameters in within which the couple
are free to develop the content of their marriage as they wish
Legal Provisions for Marriage
• Matrimonial Causes Act 1973
• Civil Partnership Act 2004
• Marriage (Same Sex Couples) Act 2013
Why Marriage?
• Hibbs et al study – 42% said love, 13% said a sign of commitment, 9% said a
sign of progression in their relationship, 3% said they didn’t know
• Eekelaar & Maclean – different ethnic groups have different reasons for
getting married, commonly a desire to please parents
• Goodman & Greaves – people are more likely to marry if, for example, the
couple have a higher level of education, the couple are religious, or the couple
have children
• Most common reason for people not marrying is that it is unaffordable, the
average cost of a wedding is £30,111
A Valid Marriage
• Only definition of marriage available is from case-law
• The provisions tell us how and where to do the marriage ceremony properly.
Also tell us who we can and cannot marry

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