#10592 - Marriage And Civil Partnerships - Family Law

Supervision 1 - Marriage & Civil Partnerships MARRIAGE 1. Marriage is a "voluntary union for life of one man and one woman" per Hyde v Hyde. 2. A marriage is void under s11 MA 1949 if (i) Parties are in prohibited degrees per Sch 1 MA 1949 (ii) Either is under 16 or (iii) The parties aren't male and female. Civil Partnership 1. This is a relationship formalised under s1 CPA 2004 between two same sex people. 2. It is void if they (i) Haven't signed the register in s2 (ii) Or per s3 they aren't same sex, over 16 and not in prohibited degrees. Same Sex Marriage? * Civil Partnership is the functional equivalent of marriage (Lady Hale). But treating people alike who are different is just as discriminatory in treating equal people differently. But the issue of discrimination can only be raised as to the 'label' as there is little or no differences as to legal consequences. But this 'label' was not a breach of the ECHR according to the HC in Wilkinson v Kitzinger and by the ECtHR in Schalk & Kopf v Austria (But latter said Art 12 not limited to man-woman but not yet a general right to marry). Norrie and Hardy call for recognising other forms of relationship rather than the heteronormative established views. * How do we view CP? Is it "less" than marriage and fundamentally different? There is still discrimination as marriage isn't open to same-sex and civil partnership isn't open to opposite sex. So extend civil partnership to both? This exists in France and Belgium, though France is proposing opening up gay marriage. * But interests of groups will differ eg not wanting the religious connotations. But this discriminates against same sex as they can't access marriage: opposite sex can choose between two and same-sex can only have one model. * So where to go? Open marriage and registered partnership up to both couples as in Netherlands, Belgium and South Africa? Or just have the one system of marriage available to all? * Parry v UK noted a transexual must either sacrifice their gender or their marriage/CPA. Marriage after changed gender is under s39A MA 1949. * Burden & Burden v UK - Different treatment for tax purposes didnt' exceed MoA. * Sterling v Fitzpatrick Housing and Ghaiden v Godin Mendoza same sex couples could be treated as "man and wife". Key Differences between Marriage & Civil Partnership Marriage Civil Partnership Opposite sex only Hyde; Wilkinson Same sex only - s3 CPA Religious or civil ceremony s5/s45-46 MA Only civil not religious per s6 CPA Formed by declared words s44 MA 1949 Formed by signed document s2 CPA Annulled on non-consumation - s12 MCA Not annulled on non-consummation s50 2