The Marriage Contract

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What is Marriage?

The classic definition of marriage was given by Lord Penzance in Hyde v Hyde:

"i conceive that marriage as understood in Christendom, may be defined as the voluntary union for life of one man and one woman to the exclusion of all others".

Key points:

  • A voluntary union
  • For life - unless terminated by divorce
  • monogamous - to the exclusion of all others 
  • Used to be heterosexual.
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Wilkinson v Kitzinger [2007]

Sought declaration that marriage should be recognised under s55 Family Law Act where both parties were of the same sex. They said that if they wanted a status they could have civil partnership but they would not be legally classified as married.

This led to the Civil Partnership Act 2004 - which laid down foundations to current laws.

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S1(1) Marriage (Same Sex Couples) Act 2013

provides simply that "marriage of same sex couples is lawful".

However, it does alow what has been described as a "quadruple lock" which means that:- 

  • No religious organisation/person can be forced to conduct a same sex marriage (s2)
  • Religious organisations can however, opt in to conduct same sex marriages if they choose.
  • The Equality Act 2010 is being amended so that no claims can be bought on the basis of discrimination if someone/a religious organisation refuses to marry a same sex couple.
  • The new act does not affect the Canon law of the Church of England or Wales 
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Radmacher v Granatino [2010

Baroness Hale stated: "marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state".

Capacity and Formalities need to be satisfied for a marriage to be valid. There are two ways to end a marriage and these are nullity and divorce. Also, death would end the marriage.

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Section 11 Matrimonial Causes Act 1973:

  • Neither party can be married
  • Both parties must be 16 or over (16 with consent - no consent will not make the marriage void)
  • Both parties should not be related within the prohibited decrees (consangunity or affinity)

There was a fourth requirement that both parties are of opposite gender. Amendments by the Marriage (Same-Sex Couples) Act 2013 mean that the requirement has now been removed. 

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Marriage can be either a civil or religious ceremony.

Civil Marriage:

  • Superintendent Registrar certificate (give notice, notice public for 21 days)
  • Registrars general license. (allows solemnisation of the marriage at a place other than a registered building or registry office. Often used for people where one party has a terminal illness and may be housebound)

Religious Marriage:

  • Publication of Banns (Banns are read for 3 consecutive sundays. A public declaration of dissent by a parent will render the publication ineffective)
  • Common License. (takes less time and usually replaces the need for banns. The granting is at the discretion of the church legal official to whom the application is made. Requires you to swear on oath in person before a legal official). The fee for a common license is normally around £200.
  • Special License. (permits the solemnisation of the marriage to take place other than at a church or chapel. Usually if you want to marr in a church outside your own parish, but you dont have any legally-recognised connections to the church). Fee is usually around £250 and are not automatically accepted.
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Solemnisation of Marriage

Civil Marriage:

  • Places to Marry - Registry office, house (if housebound), registered building etc.
  • used to only be between 8am and 6pm, but now it is anytime.
  • Have to have 2 witnesses
  • Has to be presided over by a registrar/authorised person

Religious Marriage:

  • Solemnised in church where banns are read OR the church specialised in the license.
  • Between 8am and 6pm
  • Solemnised by person in Holy Orders AND 
  • in the presence of atleast two witnesses.
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