Marriage and Civil Partnership in English Law

Introduction

Marriage and civil partnership are the principal legal frameworks for recognising and regulating relationships in English law. Marriage has historically been governed by both ecclesiastical law and statute, while civil partnership was introduced by the Civil Partnership Act 2004 as a parallel status for same-sex couples. The Marriage (Same Sex Couples) Act 2013 extended marriage to same-sex couples, and the Marriage and Civil Partnership (Minimum Age) Act 2022 raised the minimum age of marriage to 18 in England and Wales. The law governing marriage and civil partnership covers formation, capacity, formalities, and nullity.

The Marriage Act 1949

The Marriage Act 1949 consolidates the law governing the formation of marriage in England and Wales. The Act distinguishes between marriages according to the rites of the Church of England and other marriages (civil marriages and marriages in registered religious buildings).

For marriages according to the rites of the Church of England, the Marriage Act 1949 provides for marriage by banns, by common licence, by special licence, or by superintendent registrar’s certificate. The requirements include: the marriage must take place in a church or chapel of the Church of England; the marriage must be between two persons who are not within the prohibited degrees of relationship; and the marriage must be witnessed.

For civil marriages and marriages in registered religious buildings, the Marriage Act 1949 requires that the parties give notice to the superintendent registrar, that the marriage be solemnised in the presence of two witnesses and the superintendent registrar or a registrar, and that the marriage be registered.

The Civil Partnership Act 2004

The Civil Partnership Act 2004 created the status of civil partnership, conferring legal rights and obligations equivalent to marriage on registered same-sex couples. The Act was enacted following the decision of the European Court of Human Rights in Goodwin v United Kingdom (2002), which held that the UK’s failure to provide legal recognition for same-sex relationships violated Article 8 of the European Convention.

Civil partnership is formed by signing the civil partnership schedule in the presence of a registrar and two witnesses, following a notice period. Civil partners have the same legal rights and obligations as married couples in respect of property, inheritance, tax, pensions, and child support.

Same-Sex Marriage

The Marriage (Same Sex Couples) Act 2013 extended marriage to same-sex couples in England and Wales. The Act provides that marriage has the same effect regardless of the sex of the parties, and that no religious organisation is compelled to conduct same-sex marriages.

The Act includes a quadruple lock to protect religious organisations: no religious organisation may be forced to conduct same-sex marriages; individual religious officials may not be forced to conduct such marriages; the Act does not affect the canon law of the Church of England; and the Church of England and the Church in Wales must obtain parliamentary approval before opting in to conduct same-sex marriages.

Capacity and Prohibited Degrees

The capacity to marry or enter a civil partnership requires that the parties: be of marriageable age (18 in England and Wales following the Marriage and Civil Partnership (Minimum Age) Act 2022); not be within the prohibited degrees of relationship (consanguinity and affinity); not be already married or in a civil partnership; freely consent to the marriage or civil partnership; and not be within a relationship that would be contrary to public policy (such as a marriage of convenience).

The prohibited degrees are set out in the Marriage Act 1949 and the Marriage (Prohibited Degrees of Relationship) Act 1986, and include parents, children, grandparents, grandchildren, siblings, aunts, uncles, nieces, and nephews. Certain relationships by affinity are also prohibited.

Nullity

A marriage or civil partnership may be void or voidable. A void marriage is one that never validly existed and may be declared void by any person with a sufficient interest. The grounds for voidness include: the parties are within the prohibited degrees; either party is under 18; the parties have not observed the required formalities; either party is already married or in a civil partnership; or the parties are of the same sex (for marriages before the 2013 Act).

A voidable marriage is valid until annulled by the court. The grounds for voidness include: non-consummation (for marriages); lack of valid consent; mental disorder; a venereal disease in a communicable form; pregnancy by another person at the time of marriage; and an interim gender recognition certificate. An application for nullity must be made within three years of the marriage (for certain grounds) and the court must not grant a decree of nullity if the applicant has affirmed the marriage.

Conclusion

The law of marriage and civil partnership in England and Wales provides a comprehensive framework for the formation and recognition of relationships. The extension of marriage to same-sex couples and the introduction of civil partnership represent significant developments in the legal recognition of diverse relationships, while the formalities and capacity requirements reflect the legal significance of marriage as a status conferring rights and obligations.