Marriage And Civil Partnership Legislation

MARRIAGE AND CIVIL PARTNERSHIP LEGISLATION

Below are listed some acts which may be helpful in your case. Feel free to look into any of them further if you wish –

ACTS

• Marriage and Civil Partnership (Minimum Age) Act 2022 –
  • The legal age of marriage and civil partnerships in England and Wales has been raised to 18. 
  • Adults who facilitate underage marriage can face imprisonment.

• Matrimonial Causes Act 1973 –

  • The law of nullity is different from the law of divorce. Nullity is about the validity of the purported marriage from the outset. Divorce is about terminating a valid marriage. 

  • In Nullity –
    1. Void marriages and civil partnerships: these are not legally valid. It is not a marriage at all due to fundamental defect.
    2. Voidable marriages and civil partnerships: these are defective but still a valid marriage/civil partnership unless annulled.
    3. Non marriages – (non-qualifying ceremony): this is a marriage that is so distant from a marriage that it is not even void. For example, a marriage in a play.

• • Section 11 – (For Marriage) Grounds on which a marriage is VOID. 
    • If certain formalities were disregarded.
    • If either party was under the age of 16.
    • If  either party was already lawfully married or was a civil partner at the time of the marriage.
    • In the case of a polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales.
    • If the parties were within prohibited degrees of relationship (their relation to each other e.g. one partner is the sibling, parent, grandparent of the other partner, or if one partner is the child of the other partner’s former spouse).

• • Section 12 (1) – Grounds on which a marriage is VOIDABLE. 
    • Non-consummation [this does not apply to same-sex marriages].
    • A lack of valid consent by either party (1)(c).
    • At the time of the marriage, either party was suffering from a mental disorder such that they were unfit for marriage.
    • At the time of the marriage, the respondent was suffering from venereal disease in a communicable form.
    • The respondent was pregnant by a third party at the time of the marriage.
    • Gender recognition grounds.

• Civil Partnership Act 2004 –
  • Section 49 – (For Civil Partnership) Grounds on which civil partnership is VOID. 
    • If certain formalities were disregarded.
    • If either party was under the age of 16.
    • If either party was already lawfully married or was a civil partner at the time of the civil partnership.
    • If the partners were within prohibited degrees of relationship (their relation to each other e.g. one partner is the sibling, parent, grandparent of the other partner, or if one partner is the child of the other partner’s former spouse).

• • Section 50 – (For Civil Partnership) Grounds on which the civil partnership is VOIDABLE.
    • A lack of valid consent by either party (1)(a).
    • At the time of the civil partnership, either party was suffering from a mental disorder such that they were unfit for civil partnership.
    •  The respondent was pregnant by a third party at the time of the civil partnership.
    • Gender recognition grounds.

• Marriage (Same-Sex Couples) Act 2013 –
  • This is an extension of the Equality Act 2010 which ensures that no discrimination claims can be brought against individual ministers in religious organisations for refusing to marry a same-sex couple. This act also allows religious organisations to opt in to marry same-sex couples should they wish to conduct same-sex marriages.
  • Section 9 – Conversions: Civil Partnership to Marriage

    • Couples can convert their civil partnerships into marriages.

• Civil Partnerships, Marriage, and Deaths (Registration etc.) Act 2019 –
  • Section 2 – Extension of Civil Partnership.

• Grounds on which a marriage or civil partnership is VOIDABLE.

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – First ground: Lack of valid consent.
    • A civil partnership or marriage is voidable if:
    • ‘either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise’ (Section 12(1)(c) Matrimonial Causes Act 1973; s50(1)(a) Civil Partnership Act 2004). The ‘or otherwise’ could be – where one person is drunk and could not consent.
    • Cases related to this ground are listed in the cases section below.

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Second ground: Mental disorder (Section 12(1)(d) Matrimonial Causes Act; Section 50(1)(b) Civil Partnership Act).
    • “…that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Health Act 1983 of such a kind or to such an extent as to be unfitted for marriage.”
    • A case related to this ground is listed in the cases section below.

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Third ground: Communicable venereal disease (Section 12(1)(e) Matrimonial Causes Act).
    • Only applies to marriage, not civil partnership.
    • ‘…that at the time of the marriage the respondent was suffering from venereal disease in a communicable form’ (Section 12(1)(e) Matrimonial Causes Act).
    • The person must have been ignorant at time of ceremony (they did not know the other person was suffering from venereal disease in a communicable form).

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Fourth ground: Pregnancy (Section 12(1)(f) Matrimonial Causes Act; Section 50(1)(c) Civil Partnership Act).
    • Invoked within 3 years of the ceremony.
    • The person must have been ignorant at time of ceremony (they did not know the other person was pregnant with another person’s child at time of marriage).

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Fifth ground: Gender recognition (ss12(1)(h) and 13(2)-(5) Matrimonial Causes Act; ss50(1)(e) and 51(2)-(4), (6) Civil Partnership Act).
    • If one party was unaware at the time of the ceremony that the other person had changed their legal gender, the marriage/civil partnership is voidable (within 3 years of the ceremony) (ss12(1)(h) and 13(2)-(5) Matrimonial Causes Act; ss50(1)(e) and 51(2)-(4), (6) Civil Partnership Act).

• • ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Sixth ground: Consummation (Section 12(1)(a) and (b) Matrimonial Causes Act; Section 12(2) Matrimonial Causes Act).
    • An opposite-sex marriage will be voidable if the marriage has not been consummated ‘owing to the incapacity of either party to consummate it’ or ‘owing to the wilful refusal of the respondent to consummate it’ (Section 12(1)(a) and (b) Matrimonial Causes Act; Section 12(2) Matrimonial Causes Act as excluding same-sex couples).
    • This is valid only in opposite sex marriages.
    • Not valid in civil partnerships.
    • No 3-year limitation.
    • This only needs to occur once. The refusal to repeat this does not count.

• Ahkter v Khan [2020] EWCA Civ 122 – 
  • The Court of Appeal held that the family court had no power to grant a decree of nullity in relation to an Islamic nikah or marriage ceremony which took place in a restaurant in London, and which was supposed to have been followed by a civil wedding ceremony which did not take place because one party refused. This means that on the breakdown of the relationship, the couple would not be able to seek financial orders from the family court to deal with the family finances.

• • The judge, Williams J, said ““[T]he main issue in this case is whether this marriage – which lasted for 18 years (longer than the average ‘marriage’) and which produced 4 children and where all accepted them as husband and wife in fact is to be treated in English law as not a marriage at all? Not even one which can be declared void for failing to comply with the formalities of marriage?”

• • It was questioned whether an Islamic marriage ceremony created an invalid or void marriage in English law. They both knew that this didn’t create a valid English marriage and, to obtain legal recognition, it needed to be followed by a civil ceremony. The wife kept pushing for a civil ceremony. On their return to England from Dubai where they lived, she issued a petition for divorce from Mohammed Khan. He defended the divorce on the basis that the parties had not entered a valid marriage. The wife argued that the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973. Their ceremony did not create a void marriage under section 11 of  Matrimonial Causes Act 1973 because it was a non-qualifying ceremony.

    “The parties were not marrying “under the provisions” of Part II of the 1949 Act. The ceremony itself would have been permitted under section 44 if it had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony.”

These cases are ones which correspond to some of the above acts and their sections –

• Cases related to ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – First ground: Lack of valid consent.
  1. Duress
     • Szechter v Szechter (1971) – “The will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb, or liberty.” – Judge Jocelyn Simon. In this case, a Polish Jewish woman who was in poor health married a Polish scholar. They both married in order to enable the woman to escape totalitarian Poland where she had been arrested for ‘anti-state activities’. The man divorced his wife with the wife’s consent to facilitate this plan. The marriage was successfully annulled. 
     • Hirani v Hirani (1983) – “The crucial question in these cases, particularly where a marriage is involved, is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual.” In this case, a young Hindu woman was married off to a stranger by her parents after the woman declared she wanted to marry a young Muslim. A month after the marriage, the young woman petitioned for a decree of nullity, claiming that her parents threatened to throw her out of the house if she refused to marry the stranger. The court granted the decree only after focusing on the effect of the threat. 
  2. Mistake
     • Militante v Ogunwomoju (1993) – False representation of identity. A mistake has been made as to the identity of the other party or the nature of the ceremony. In this case, one party was granted a decree of nullity after she discovered that her husband was an illegal immigrant who had lied about his identity. The marriage was voidable and she had it annulled.
  3. Unsoundness of Mind

     • Sheffield City Council v E and Another [2004] EWHC 2808.  “He or she must understand the nature of the marriage contract… understanding the duties and responsibilities that normally attach to marriage.” said Judge Munby J. In this case, the issue lay in whether a 20 year old woman with the mental capacity of a 13 year old, whom had entered into a relationship with a 37 year old man, had understood the nature of a marriage contract. It was determined by the Family Division of the High Court that a person only has the capacity to marry if they understand the nature of a marriage contract (including what obligations typically come with marriage).

• Cases related to ‘Grounds on which a marriage or civil partnership is VOIDABLE‘ – Second Ground: Mental Disorder (Section 12 (1)(d) Matrimonial Causes Act; Section 50(1)(b) Civil Partnership Act). 

This refers to idea that, despite either party being able to give valid consent at the time of the marriage, one of the parties was suffering from a mental disorder within the definition given by the Mental Health Act 1983 to such an extent that they were unfit for marriage.

• • Bennett v Bennett (1969) – Ormrod J provided a explanation of what it is to be ‘unfitted’ for marriage: “It really must mean something in the nature of ‘is this person capable of living in a married state and of carrying out the ordinary duties and obligations of marriage?’”. In this case, a woman was admitted to a mental hospital whilst in her marriage. The husband was not aware that his wife had been admitted to a mental hospital twice before their marriage. The husband applied for a decree of nullity claiming that his wife could not fulfil the typical marriage duties as a result of her mental state which was recognised as an illness under the Mental Health Act 1983. The decree was granted.