Lecture notes
marriage and civil partnership
very in-depth and clear lecture notes from student at city university of London studying family law. I personally revised from these notes and achieved a 2:1 in this module.
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MarriageDEFINITION OF MARRIAGE
Hyde v Hyde 1865-1869- “voluntary union for life of one man and one woman to the exclusion of all
others”.
Bellinger v Bellinger 2001- “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”.
Contract: legal consequences agreed between parties, according to their intentions.
Status: set of legal consequences, regardless of the intentions of the parties. Maintenance
obligations, inheritance on intestacy.
RIGHT TO MARRY
Article 12 ECHR
Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.
Khan v UK 1986- Islamic marriage with girl under 16 found void and criminal penalties for sexual
intercourse. He argued these consequences had prevented him from exercising his religion through
Islamic marriage as this was legal in his religion. It was held a minimum matrimonial age is
compatible with article 12 even where the individual’s religion allows for marriage at a lower age.
Marriage is not simply a form of expression of conscience or religion. Marriage has a public
relevance making it the states responsibility to protect.
ENGAGEMENT TO MARRY
S.1 Law Reform (Miscellaneous Provisions) Act 1970- engagement is not enforceable as a contract.
Property and gifts between engaged couples in the event of termination of engagement
Gifts between engaged couples:
S.3 Law Reform (MP) Act 1970- distinguishes between gifts conditional upon marriage and
unconditional gifts.
(1) a party may recover property given on the condition (express or implied) that it shall be returned
if the agreement is terminated.
(2) the engagement ring is presumed to be an absolute gift.
Presumption rebutted by proving it was given on the condition (express or implied) that the
recipient returns if the marriage does not take place (e.g family heirlooms)
Property of engaged couples:
S.2(1) Law Reform (MP) Act 1970- applies S.37 to engaged couples
S.37 Matrimonial proceedings and Property Act 1970- applies to spouses
Substantial contribution in money/ money’s worth to the improvement of property means the party
will be treated as having acquired a share in the beneficial interest.
, ENGAGED COUPLES AND DOMESTIC VIOLENCE
Part 4 Family Law Act 1996
Engaged couples are ‘associated persons’
Can apply for non-molestation orders against one another
CONTRACTING A VALID MARRIAGE
1. Capacity to marry
2. Formalities of marriage
CAPACITY TO MARRY
a) Not within prohibited degrees of relationship
b) Age: over 16
c) Neither party already married
d) Until 2013: respectively male and female (repealed by Marriage (Same-Sex Couples) Act
2013
Not within prohibited degrees of relationship
S.1 & Sch.1 Marriage Act 1949
Restrictions based on two groups of relations:
Consanguinity (blood relationships)
Relationships subject to the bar (Sch.1, part 1 Marriage Act 1949)
Parent- child
Grandparent- grandchild
Brother- sister
Uncle- Niece
Aunt- Nephew
No exceptions to the bar.
Adoption and restrictions on marriage: an adoptive parent cannot marry an adoptive child. An
adoptive child can marry other relations deriving from adoptions. Bar still applies between the
adopted child and their birth parents.
Affinity
Step-relationships:
Child/grandchild of former spouse/civil partner
Former spouse/civil partner of parent/grandparent
Exception: a step parent can marry the child of a former spouse if
S.1(3) Marriage Act 1949: “if both parties to the marriage have attained the age of twenty-one at the
time of the marriage and the younger party has not at any time before attaining the age of eighteen
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