Lecture notes

Family Law: Adult Relations Summary Notes

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Module
LAW 6013A (LAW6013A)

Institution
University Of East Anglia

Book
Family Law

This is a compilation of lecture notes for the module Family Law: Adult Relations. It goes through the different areas from marriage, to divorce and other aspects. There are both notes from the lectures and the lecturer themselves as well as my own added notes.

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Uploaded on December 31, 2023
Number of pages 65
Written in 2023/2024
Type Lecture notes
Professor(s) Polly morgan
Contains All classes

family law
adult relations
divorce
marriage
summary
notes
lecture notes

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Family Law: Adult Relations

Lecture One: Welcome to Adult Relations

Lecture Two: Family Forms

Learning Objectives
 Explain how popular each type of family form (Married/Cohabitating/Other) is within
England and Wales.
 Understand the distinction between marriage, same-sex marriage, and civil partnership.

Regimes
 Marriage
- Traditionally different sex
- Same-sex because of Marriage (Same-Sex Couples) Act 2013
 Civil Partnership
- Introduced for same-sex couples only by Civil Partnership Act 2004
- Opened to different-sex couples by Civil Partnership (Opposite-sex Couples) Regulations
2019 (SI 1458/2019)

Hierarchy of intimate adult relationships
1. Privileged Relationships
2. Accepted Relationships
3. Non-Recognised Relationships
4. Forbidden Relationships

Themes of the module
 State intervention v private ordering
 Rules v discretion
 The de-lawyering of family law
 Protections for wider family forms - what is a family? What families get protection?
 Effect of human rights jurisprudence

Lecture Three: Getting Married and Nullity

Learning Objectives
 The legal requirements for the formation of a valid marriage and what factors a court may
consider when determining the validity of a marriage.
 Evaluate the proposed reforms of marriage law.
 Discuss the basis on which a marriage may be void, voidable, or a non-marriage, and the
implications of each, and evaluate the continuing need for a law of nullity.

Requirements for a valid marriage
1. The parties must be aged 18+ - raised from 16 with parental permission with effect from 27
Feb 2023 by virtue of the Marriage and Civil Partnership (Minimum Age) Act 2022
2. They must not be within the prohibited degrees of blood relationship (consanguinity) or
marital relationship (affinity) (s11(a) MCA 1973)
3. Neither party must already be lawfully married (s11(b) MCA 1973)
4. Parties must not have married in disregard of certain formalities (but not all breaches fall
under this heading and render the marriage void)
 Breach of these requirements will render the marriage void ab initio.

,Types of wedding ceremonies
 Secular (non-religious)
 Church of England or Church in Wales
 Quaker
 Jewish
 All other religions
 Non-religious belief organisations (humanists)

Preliminaries for valid marriage
Preliminaries Rites Venue Celebrant
Civil Ceremony Notify register Prescribed form of Register office or Registrars (an
office words. There are approved premises officials appointed
two witnesses. which cannot be by the local
currently or authority)
recently religious.
Since Covid can
be outside area of
premises.
Church of Reading of banns Own rites and two Does not need Clerk in holy
England and or Bishop’s witnesses. licensing by local orders such as a
Church in Wales common licence authority vicar.
or Archbishop’s
special license.
Jewish Notify register Own rites and No restrictions as Rabbi (does not
office there is no need to place are need separate
for witnesses. specified in authorisation) or
legislation. under Rabbi’s
authority.
Quaker (Society Notify register Own rites and No restrictions as None, but the
of Friends) office there is no need to place are marriage will be
for witnesses. specified in registered by the
legislation. local Registering
Office.
All other Notify register Prescribed form of A certified place A registrar or
religious groups office words. There are of worship which someone
two witnesses. is also registered authorised to
for the conduct weddings
solemnisation of at that location
marriages. (who may be a
religious leader)

Percentage of civil and religious ceremonies, England, and Wales, 1969 to 2019

 Source: Office for National Statistics - Marriages in England and Wales
Same-sex marriages
 For civil (secular) ceremonies – same process as different-sex couples

,  Religious: religious organisation must opt in to conducting same-sex marriages and the
ceremony must be conducted by someone authorised to conduct same-sex marriages and in a
place of worship registered for same-sex marriages
 “Quadruple Lock” for the Church of England
 As no CofE same-sex marriages are permitted, the parties will always have to notify the
register office.

Civil partnerships
 Currently same-sex only but due to change
 Notify register office.
 Wait 28 days.
 Get superintendent registrar’s licence.
 Secular (although can be surrounded by religious event)
 Formed by signing of the register (cf marriages, formed by vows)
 Must be conducted by a civil partnership registrar (who can be religious, cf secular civil
marriage)

Consequences of getting it wrong
 There are three options if you have married in breach of the formalities.
1. The marriage is void.
2. The marriage is valid despite this.
3. The ceremony was non-qualifying.

What is a void marriage?
 A void marriage is one that, ‘owing to the presence of an impediment at the time of the
ceremony, will be regarded … as never having taken place’. The marriage is invalid from the
start (‘ab initio’) because of a condition existing at the time of the ceremony.
 Only those situations described in s11 Matrimonial Causes Act 1973 that cause a marriage to
be void.
 Effect of having a void marriage

Grounds on which a marriage is void. - s11 Matrimonial Causes Act 1973
 A marriage celebrated after 31st July 1971, other than a marriage to which section 12A
applies, shall be void on the following grounds only, that is to say—
(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that
is to say where—
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the
formation of marriage);
(b) that at the time of the marriage either party was already lawfully married or a civil
partner;
(d) in the case of a polygamous marriage entered into outside England and Wales, that either
party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its
inception neither party has any spouse additional to the other.

Disregard of certain requirements - what requirements?
 The Marriage Act 1949 says a marriage will be void if you ‘knowingly and wilfully’
intermarry under the provisions of this Part of this Act.
- Without due notice
- Without a marriage schedule (licence) or where the schedule is void
- Somewhere other than the place listed in the marriage schedule.
- On unapproved premises

, - In a registered building (place of worship) but not before an authorised person or registrar
- In approved premises (secular) but without a registrar
- Or as a same-sex couple in non-approved premises (s49 Marriage Act 1949)
- Same-sex marriage according to religion that has not opted-in to same-sex marriages
(s49A)

What of other errors?
 “The question whether a marriage is void, voidable or valid presupposes the existence of an
act allegedly creative of the marriage status”.
- Joseph Jackson, The Formation and Annulment of Marriage, 1st Ed 1951) 65.
 This has led to the recognition by courts of a category (not mentioned in statute) of ‘event[s]
with marital qualities’ that do not form marriages at all, not even void ones. The ceremonies
are ‘non-qualifying ceremonies.
 The initial difficulty was in distinguishing between non-qualifying ceremonies and those that
resulted in a void marriage. Different implications of each.
 Consider the situation in Hudson v Leigh [2009] EWHC 1306 (Fam) (the reasoning in this
case is wrong following Akhtar v Khan)

Attorney General v Akhter and Khan [2020] EWCA Civ 122, known at first instance as
NA v MSK [2018] EWFC 54
 Knowing and wilful disregard only applies to marriage within the Act i.e., where the parties
purported to intermarry under the provisions of Part II (marriages according to the rite of the
Church of England) or Part III (marriage under a superintendent’s marriage schedule) of the
1949 Act.
 The parties’ ceremony was outside the scope of the Act and thus not (even) void.
 The effect of the Court of Appeal’s decision in this case is that non-qualifying ceremonies will
create non-marriages, rather than void marriages.
 Parties’ intentions are irrelevant.

Checking validity
 Is the marriage valid anyway? Check ss47/48 Marriage Act 1949
 Is the marriage void? Check s48 Marriage Act 1948 and s11 Matrimonial Causes Act 1973
 If neither:
- Court of Appeal decision in Attorney General v Akhter and Khan [2020] EWCA Civ 122:
non-qualifying ceremonies will create no marriage, rather than a void marriage. Intent
cannot make a marriage that would otherwise be a non-marriage into a void marriage.

Void ab Initio Voidable Non-marriage/non-qualifying
ceremony
A void marriage is one that, Exists until annulled by a party. ‘Event[s] with marital
‘owing to the presence of an More closely linked to personal qualities’ that do not form
impediment at the time of the issues of the parties than void marriages at all, not even void
ceremony, will be regarded … marriages ones.
as never having taken place’. Some statutory bars (time Key case now is Attorney
Only those situations described limits/knowledge) General v Akhter and Khan:
in s11 Matrimonial Causes Act Marriages celebrated after non-qualifying ceremonies will
1973 that cause a marriage to 31.7.71 can be voided on the create non-marriages, rather
be void: following grounds: than void marriages.
 Prohibited degrees  Non-consummation  Everything not falling
(wilful or incapable) into one of the
 Under 16  Lack of consent - void/voidable
duress, mistake, lack categories.
of capacity or
otherwise

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