Family Law: Marriage / Civil Partnership vs Cohabitation
WORK TO BE DONE OVERALL:
1. Review class
2. Read Module Guide Chapters 1-2
3. Read relevant chapters in textbooks and revision books
4. Compile past paper questions on topic and do them
5. Make notes.
6. Home-work
7. Activities
Marriage and Civil Partnerships.
Marriage
Meaning:
- The term marriage is a complex mix of social, legal, religious
and personal issues, therefore, making it impossible to
produce a single definition.
-It can be said that marriage is whatever parties to a marriage
take it to mean.
Example: Christian couple may base their marriage on biblical
principles in contrast to a couple who sees their marriage as
open or short-term.
-Perspectives of marriage.
Functional: considers the purpose of marriage. Some
suggest children. This is said to be outdated as children
are born frequently to unmarried couples.
Psychological: considers the psychological need to marry
and psychological interactions between two marriage
partners. According to Anthony Giddens, peoples are
individualistic as they stay in relationships as long as
they feel benefitted from them.
Political: Some see the subjugation of women as the
essence of marriage. Baroness Hale has rejected this
approach stating these are not the olden days.
Religious: A wide variety, some religions teach of a
spiritual union between spouses, with their love
reflecting God’s love. Some teach marriage as
indissoluble. Some teach marriage must be between the
opposite sex, whilst some are open to same-sex.
-England and Wales, marriage is heavily influenced by
Christian theology.
, Legal definition of marriage.
- 18th century, Blackstone’s Commentaries on the laws of
England, “By marriage, the husband and wife are one person
in law; that is the very being or legal existence of the woman
is suspended during the marriage, or at least incorporated or
consolidated into that of the husband ...”
-Hyde v Hyde 1866, Lord Penzance describes marriage as, “the
voluntary union for life of one man and one woman to the
exclusion of all others.”
-Most recent reform, 2014 implementation of the Marriage
(Same Sex Couples) Act 2013. Lord Wilson wrote, “My own
view is that we have now reached the stage in which, if acting
with appropriate care and understanding, parties should be
allowed to elect the sort of marriage which they want.”
-The law has much to say about who can marry whom and how
the relationship can end but has little to say about the content
of the relationship itself.
Why people marry?
-Hibbs et al study shows 42% engaged couples are marrying
for love and love and commitment. 9% state marriage was a
sign of progression of their relationship. 3% did not know why
they were marrying. 4% because of children. Less than 1%
mentioned religion. None gave legal reasons for marriage.
-Ekelaar and Maclean study: different ethnic groups gave
different reasons for marriage such as religious reasons and
desire to please parents. Reasons could be divided into three
categories: pragmatic (legal reasons), conventional (pressure
from parents or religious belief) or internal (to affirm their
commitment to each other).
-Why people do not marry: most common reason, people could
not afford it.
Marriage as a contract or status.
As a status, if a couple marry, they are subject to the laws that
govern marriage regardless of their intentions or choice.
As a contract, legal consequences would then flow from the
intentions of the parties set out in the agreement rather than
the rules set by the law.
, Marriage in English Law is best understood as a mixture of a
contract and status.
Argument for marriage being a status:
-Rob George, “Entering a marriage is, in some ways, more like
joining a club. If you meet the entry requirements, you may
become a member, but it does not entitle you to alter the
club’s rules unilaterally. You can join the club or not, and you
can campaign to change the rules of the club whether you are
a member or not; but you cannot both be a member of the club
and refuse to abide by its current rule”
Argument for marriage as a contract:
-Dewar and Parker.
Presumption of marriage
A couple who lives together, believing themselves to be
married and present themselves as a married couple, the law
sometimes presumes that they are legally married.
Any one who seeks to claim that they are not married must
provide evidence to rebut this presumption.
-Presumption can be rebutted by showing the couple do not
appear on the register of marriage. Martin v Myers.
-Presumption occurs mostly when a marriage took place a long
time ago or aboard so official records are not available.
Hayatleh v Mofdy.
-Longer parties cohabit, stronger presumption. Dukali v
Lamrani (8 eights insufficient)
-Pazpena de Vire v Pazpena da Vire, where there was some
kind of ceremony, must be shown beyond reasonable doubt
that the ceremony was invalid. Where there was no ceremony,
there must be first evidence that there was no marriage.
-The law is not saying that couples who live together are
married because they
cohabit but that there is presumption that they have
undergone a ceremony unless proven otherwise.
Non-marriages, void marriages and voidable marriages.
What might appear to be a ceremony of marriage can either be:
1. a valid marriage
2. a voidable marriage
