Summary
Summary Formation and Breakdown of Marriage FULL NOTES
- Module
- Family Law
- Institution
- University Of Law (ULaw)
Formation and Breakdown of Marriage FULL NOTES
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Formation and Breakdown of Marriages/CivilPartnerships
Forming formal relationships
Forming Formal Relationships:
Those getting married or wanting to enter a civil partnership (CP), must comply with certain
preliminary formalities – set out in Marriage Acts (1949-94). They have to go through certain
formalities to form these relationships.
The consequence of not formalising the relationship = lose rights/ not attain the rights that
comes with a formal relationship
2 requirements of a valid marriage:
1. Capacity:
a. Understanding what being married means/what marriage is
b. That you will be a husband/wife once you get married and will have certain
responsibilities
c. Hyde v Hyde – “voluntary union”
2. Formalities (Marriage Acts 1949-94)
a. Different rules depend on where you get married
There are formalities for before the marriage, the ceremony and marriage itself, and then after
the marriage has taken place
Article 12 – ‘right to marry’ – basic human right to be able to enter a formal relationship
Different rules depend on where you get married
Why have rules?
Distinguish between marriage, engagement and cohabitation
Reinforces seriousness of what you’re entering into
Formal record
People can object if they want to
Are formalities too strict?
Parties might be discouraged from marrying if the formality requirement is too strict
Puts people off
Danger of a strict interpretation of the rules:
, S25 and s49 MA 1949 – void only if breach the rules ‘knowingly and wilfully’ (to be
discussed later)
Can lead to actions which invalidate marriage
6 things to note:
1. Civil (non-religious) ceremony is the same whether OS couple or SS couple
2. Religious ceremony i.e. in Church 🡪 there is a big distinction between OS and SS couples (SS
not allowed to get married in CofE church)
3. SS marriage:
a. Most religious organisations have to opt in in order to conduct the ceremony (they
have to say that they, as an organisation, can conduct SS marriages)
4. Each individual minister of the org must then choose whether or not to marry SS couples
5. If you choose not to opt in, you are protected from challenged
6. CofE 🡪 individual minister cannot opt in, the CofE (as an entire organisation) must allow it for
individual ministers to have a choice. Currently, the CofE does not allow SS marriages, which
means that individual ministers in the church cannot choose to marry SS couples.
Specific formalities:
Rules can vary slightly depending on whether the ceremony is civil or religious
BEFORE:
Parental consent:
S3 MA 1949
16-17 year olds
Consent of everyone with parental responsibility (or of legal guardian/local authority if don’t
have parents)
HOWEVER, if you don’t get consent, marriage won’t necessarily make it void
WHY? To protect people from abuse
Publicising the intent to marry:
Anglican (CofE) weddings:
Reading of the banns x3
Civil weddings:
Marriage notice book (28 days notice)
Licence/certificate
WHY? So people can object
, DURING:
The marriage ceremony:
Civil ceremony:
Must be non-religious
Most popular
In a non-religious place e.g. hotel, football ground
Permanent structure
Not allowed to sing hymns
Now allowed some religious content
Need 2 witnesses and a registrar
CofE ceremony:
Clergy have to carry out religious ceremony
Qualify either by being baptised or resident in a certain area
Clergy cannot deny you if you are qualified
2 witnesses and a priest
Priest can opt out (personal choice)
Divorcees
Undergone gender reassignment
SS couples
AFTER:
Registration:
Must register marriage
Proof that you are actually married
Get ‘marriage certificate’
A note about CPs:
Not a marriage
Since s202 Equality Act (2010), faith groups can opt in by having their premises approved
Need to comply with the rules on capacity and the formalities
Rules on capacity are the same as marriage, apart from the parties must be of the same sex (atm
– by 2020 OS couples can also be in CP)
Formalities differ in that parties sign a civil partnership document in the presence of a CP
registrar and two witnesses
, Consequences of failing to comply with the formalities:
1. No effect:
Minor breach like going past notice date
Wrong wording used in ceremony
Get married where you are not resident
Don’t comply with time formalities
2. Marriage is void
Annulment – annulment procedure is also known as the ‘decree of nullity’
‘knowingly and wilfully’ failed to comply
‘knowingly and wilfully’ evaded the rules e.g. have a religious ceremony in a non-
religious building
Annulment – Void + Voidable - some couples would rather have an annulment than divorce
3. Non-marriage
There is no marriage at all
Alfonso-Brown v Milwood (2006):
i. It was an engagement ceremony, and not a marriage ceremony
The court has no power to award orders (financial and property)
Couple is treated as an unmarried couple
Hudson v Leigh (Status of non-marriage) (2009) - listed facts indicating if marriage was
non-marriage:
i. Whether the ceremony or event set out or purported to be a lawful marriage
ii. Whether it bore all or enough of the hallmarks of marriage
iii. Whether the three key participants believed, intended and understood the
ceremony as giving rise to the status of lawful marriage
iv. The reasonable perceptions, understandings and beliefs of those in
attendance
Doesn’t even qualify as a void marriage
Anything that is a fundamental obstacle to the formation/existence of marriage/CP
Marriage so flawed it can’t be seen as a marriage
Couple believe they are not going through a ceremony
About what the couple actually thought
(1) When is a marriage, not a marriage?
Include civil partnerships (the rules are similar but not exactly the same for CPs)
Two categories: Void and Voidable Marriage/CPs
The consequences of proving the above means there is an annulment
(2) Can a presumption of marriage arise, and if so, how can it be rebutted?
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