Family Law Unit 5 Marriage and Cohabitation Jon Hodgkinson

Timetable Easter vacation 28 Tues 18 April   Easter vacation 28 Tues 18 April Introduction to family law & domestic partnerships 29 24 April Requirements for marriage / civil partnerships / cohabitation Assignment 4 hand-back 30 Tues 2 May Legal facts for divorce & divorce reform 31 8 May Consequences of cohabitation breakdown Assignment 5 brief 32 15 May Domestic violence & the legal response 33 22 May Advice & guidance drop-in session / draft submissions Assignment 5 hand-in Student half term 34 5 June Law trip? 35 12 June Final opportunity for referral / late submissions Assignment 5 hand-back 36 19 June Hand back of late submissions / referrals

Unit 5 Learning outcomes Family Law – Marriage and Cohabitation Understand the difference between cohabitation and marriage/civil partnerships. Understand the legal consequences of ending marriage and other relationships. Understand the law concerning domestic violence.

Learning Outcomes for today 1. Consider what makes a family and how the law treats a family 2. Evaluate the social and legal developments of the ‘family’  3. Consider the legal requirements of marriage

What is family law? Discuss with your group/partner what you think family law is and make a list of all areas that you think family law deals with.

Areas of family law The list is not exhaustive - Think of social change. Marriage Divorce Child protection Residence of a child Domestic abuse Adoption Child support (LA) Financial assets in divorce Parental responsibility

Family lawyers need to be experts in… Property law • Tax law • Inheritance law • Wills and trust law • Social security law • Contract law • Criminal law • Human rights law • Medical law - Scientific developments • Biological developments • Psychology • Sociology They need to have a multitude of skills- negotiation, advocacy, persuasiveness, tact, time management, compassion, diplomacy, emotional strength.

Previous learned knowledge Family law covers both Civil and Criminal law. ADR – compulsory mediation, parties to attend a Mediation Information Assessment Meeting (courts are not considered the best medium for resolving family disputes) Family Procedure Rules 2010

Previous learned knowledge Family law sits in both Public and Private law. Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) legal aid is no longer available for a majority of family law children and financial remedy cases.

What is a family? Any relation by blood or affinity, who have or had, emotional ties with each other. Constituents don’t necessarily live together but many do occupy the same family home EU Directive 2004/Art38 Legal same sex marriage should also be considered a spouse/ acknowledges a difference between partner and beneficiary/ children or grandchildren under 21 years.

Marriage defined as… Task – research Hyde v Hyde (1866) LR.1 P&D 130 and feedback the definition (four elements of marriage) of Lord Penzance ‘ 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 others’.

Hyde v Hyde (1866) L Penzance His definition contains four elements. 1. Voluntary – The absence of consent makes the marriage void 2. For life – The parties intend the marriage to be for life at the time of the wedding

Hyde v Hyde (1866) L Penzance His definition contains four elements. 3. Parties of the opposite sex – law has now changed since 2014 and the enforcement of the Marriage (Same Sex Couples) Act 2013 4. Monogamous – Bigamy is a crime under English law and such marriages are void (divorce is voidable) see Offences Against the Person Act 1861 Section 57

Marriage (Prohibited Degrees of Relationship) Acts 1949 - 86 To have capacity to marry according to these Acts: 1. One party must be male and one female. 2. Neither party must already be lawfully married. 3. Both parties must be over 16. 4. The parties must not be related within the prohibited degrees of consanguinity or affinity as set out in the Acts

Civil Partnership Act 2004 S. 3 - Eligibility (1)Two people are not eligible to register as civil partners of each other if— (a)they are not of the same sex, (b)either of them is already a civil partner or lawfully married, (c)either of them is under 16, or (d)they are within prohibited degrees of relationship.

Marriage (Same Sex Couples) Act 2013 An extension of marriage in accordance with the Marriage Act 1949 The Act extends the rights of marriage to same sex couples.

Gender Recognition Act 2004 A person legally change sex in accordance with the GRA 2004. How does this impact on marriage? S.4A has been incorporated into the Marriage (Same Sex Couples Act) 2013 under schedule 5. If a gender recognition certificate has been issued -  conversion of a civil partnership into a marriage under regulations under section 9 of the Marriage (Same Sex Couples) Act 2013

Case study Heterosexual couple lose legal fight for civil partnership. http://www.bbc.co.uk/news/uk-37834074 (Why have a Civil Partnership) http://www.bbc.co.uk/news/uk-39039146 (Feb 2017 case update)

Common law spouse No such thing as a ‘common law marriage’ this is a myth. However, those cohabiting may contract to each other (Cohabitation contract) and there are certain areas of Equity and Trust law that will protect parties. (more on this later)

Presentation Time! Group 1. Discuss the advantages and disadvantages of a Civil partnership – who it benefits /discriminates. 2. Discuss the advantages and disadvantages of Marriage who it benefits /discriminates. 3. Explain how a marital relationship may be ended – Nullity, Separation, Divorce (See the Matrimonial Causes Act 1973 – s. 1(2), s. 11- s.12) 4. Explain how a civil partnership may be ended – Nullity, Separation, Dissolution (See the Civil Partnership Act 2004 - s.37, s.41, s.44, s.49, s.50, s.56)

Stretch and Challenge MCA 1973 s.12 provides that marriage can be voidable on certain grounds. List those grounds – then research the case of Singh v Singh [1971]226. What does Davis L J mean by the term ‘invincible repugnance’?