Marriage and civil partnership — overviewDefinition of marriage

In English law the classic definition of marriage dates back to that given by Lord Penzance in Hyde v Hyde in 1866:

'… the voluntary union for life of one man and one woman to the exclusion of all others.'

So there are four conditions for a marriage:

• the marriage must be voluntary

• the marriage must be for life, ie the parties' intention at the time of the marriage

• the union must be heterosexual

• it must be monogamous

In addition, the parties must be of marriageable age.

Civil partnership

The Civil Partnership Act 2004 (CPA 2004) defines civil partnership as a formal legal relationship between two people of the same sex formed when they register as civil partners of each other.

To be eligible for a civil partnership the parties must:

• be of the same sex

• be unmarried and not already a civil partner

• be over the age of 16 (and have parental consent if under 18)

• not be within the prohibited degrees of relationship

The formalities of marriage

These are predominantly governed by the Marriage Act 1949, the Marriage Act 1983 and the Marriage (Registrar General's Licence) Act 1970. They include requirements as to, for example, licences. Marriages must take place in a prescribed place. Other formalities relate to things such as the hours of marriage and attendance of witnesses. Failure to comply with the formalities may be a ground for nullity.

Formalities of forming a civil partnership

The formalities governing the formation of a civil partnership are contained in CPA 2004 and include:

• requirements as to notice and residence

• the place of registration

• delivery of the civil partnership document

• registration

• publicity

• objections

• the waiting period

Certain overseas relationships are recognised and are treated as civil partnerships in England and Wales. They derive the same benefits as a civil partnership entered into in England and Wales and may be dissolved in the same way as civil partnerships.

The Gender Recognition Act 2004

The Gender Recognition Act 2004 (GRA 2004) came into force on 4 April 2005. Under the Act an application may be made for a gender recognition certificate (GRC).

Application for a GRC may be made by a person of either gender who is at least 18 years of age. The are two bases of application:

• living in the other gender, or

• having changed gender under the law of a country or territory outside the UK approved by order made by the Secretary of State.

These are referred to in the statute as the acquired gender. The application is determined by the Gender Recognition Panel.

The panel must grant an application based on living in the acquired gender if satisfied that the applicant meets the requirements in GRA 2004. There are transitional provisions applying in the first two years from the commencement of GRA 2004.

It is not a precondition of obtaining a GRC that the applicant has undergone gender reassignment surgery.

An interim GRC will be granted if the applicant is married. This is a potential ground for a decree of nullity in relation to the marriage. When a decree of nullity has been granted, a full certificate must be issued.

Appeals and registration

Provision is made in GRA 2004 for appeals to the High Court.

The Registrar General is required to maintain a gender recognition register not open to the public.

The effect of the issue of a GRC

A person's gender becomes, for all purposes, the acquired gender, so that if the acquired gender is male, the person becomes a man, and similarly if the acquired gender is female, the person becomes a woman.

Human rights issues

The issue of gender recognition raises human rights issues and has come before the European Court of Human Rights (ECtHR). It was following ECtHR decisions that GRA 2004 was enacted. Gender change does not affect status as the father or mother of a child.

The consequences of marriage

There are many consequences arising from marriage, including:

• a marriage can only be ended by a decree of divorce or nullity

• an obligation on each party to make reasonable financial provision for the other during the subsistence of the marriage and on its termination

• a spouse acquires certain rights of occupation and the right not to be evicted, ie matrimonial home rights under the Family Law Act 1996 (FLA 1996)

• a father who is married to the mother of his child acquires parental responsibility for the child

The consequences of civil partnerships

There are a number of consequences arising from civil partnerships including:

• under the Children Act 1989 (ChA 1989) civil partners have the same rights as married partners, including the ability to apply for a parental responsibility order in the same way as a step-parent in the case of a married couple

• an ability to acquire the same financial relief in proceedings for dissolution, nullity and separation orders as are available to a married person under the Matrimonial Causes Act 1973 (MCA 1973), Pt II

• there are specific provisions relating to contributions by a civil partner to property improvements

• provisions on death; for example, a civil partner is treated in the same way as a spouse or former spouse with regard to applications made under the Inheritance (Provision for Family and Dependants) Act 1975 and the position of civil partners will be the same as spouses in respect of each other's estate, including rights upon intestacy

• protection from domestic violence is provided by amendments to FLA 1996 Pt IV, which affords the same protection to civil partners as to a spouse