Family Law

Eighth edition

by Kate Standley

Updates for Chapter 2: Marriage and civil partnership

May 2014 update

2.1 Marriage

Statistics from the Marriage Foundation

According to new figures from the Marriage Foundation, there has been a generational shift from marriage as couples increasingly choosing to cohabit. Marriage rates have been falling since 1970 (the peak year for marriage); and across every age group the proportion of men and women who have ever married is in decline. The greatest decline in marriage has taken place among those under 25. In 1970, 564,818 men and women aged 25 were married (compared to 56,598 men and women of that age in 2012, fall of 90 per cent). Based on the latest marriage rates, the Marriage Foundation estimates that nearly half of today’s 20-year-olds will never marry (see Harry Benson, Briefing Note, Who’s still getting married these days?, June 2014, available on the Marriage Foundation website, www.marriagefoundation.org.uk).

Statistics on marriage

According to figures from the Office for National Statistics (ONS), there was a 5.3 per cent increase in the number of marriages which took place in England and Wales in 2012 than in 2011 (262,240 in 2012 compared with 249,133 in 2011). The majority of marriages involved couples aged 25 to 29; and the average age at marriage was 36.5 for men and 34 for women. Civil ceremonies accounted for 70 per cent of all marriages.

2.2 Capacity to marry

Section 11(c) of the Matrimonial Causes Act 1973 has been removed by Sched. 7, para. 27 of the Marriage (Same Sex Couples) Act 2013. Same-sex marriage is now legal in England and Wales, and in Scotland (see 2.11).

2.5 Void and voidable marriages – the law of nullity

2.5 (b) (ii) Lack of consent (s 12(c))

The following case dealt with capacity to enter into a marriage; and the issue of lack of consent in the context of forced marriage:

2.6 Forced marriages

2.6 (a) Introduction: the problem of forced marriages

New figures published by the Forced Marriage Unit (FMU) show that it dealt with 1,302 potential cases of forced marriage between January and December 2013. The figures also show that the FMU handled cases involving 74 different countries; and that the majority of those cases involved families of Pakistan origin (42.7 per cent). In 82 per cent of cases the victims were female. 25 per cent of cases involved victims aged 16-17, whilst 15 per cent of cases involved victims aged 15 and below.

2.6 (e) Protection under the criminal law

New criminal offences relating to forced marriage

On 16 June 2014 new legislation came into force to criminalise forced marriage. These changes were introduced by Part 10 (‘Forced Marriage’) of the Anti-social Behaviour, Crime and Policing Act 2014, which makes (i) breach of a forced marriage order (FMO)a criminal offence and (ii) introduces a new offence of forced marriage.

(i) Breach of a forced marriage order Section 120 of the Act inserts a new section 63CA into the Family Law Act 1996 to make breach of a forced marriage protection order a criminal offence.
( ii) A criminal offence of forced marriage Section 121 of the Act introduces a new criminal offence of forced marriage in England and Wales. A person commits such an offence if he or she uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage (s.121(1)(a), and believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent (s.121(1)(b). It is also an offence if a person practises any form of deception with the intention of causing another person to leave the United Kingdom (s.121(3)(a) and intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales (s.121(3)(b).
A person who is found guilty of either of the above offences can (on summary conviction, i.e. in the magistrates court) be sentenced to imprisonment for up to 12 months or to a fine or both (s.121(9)(a); or (on conviction on indictment, i.e. in the Crown Court) to imprisonment for up to seven years (s.121(9)(b)).

(Section 122 makes similar provisions with respect to forced marriage in Scotland.)

2.7 Transsexuals and marriage

2.7 (b) The Gender Recognition Act 2004

Change of gender of married persons or civil partners

The government is proposing to make changes to the Gender Recognition Act 2004 to permit persons to change their legal gender without having to end their marriage (or civil partnership) (see s.12 of the Marriage (Same-Sex Couples) Act 2013, which is not yet in force). This will remove the current requirement that a person who wishes to legally change their gender must end their marriage (or civil partnership) before a full gender recognition certificate can be issued.

2.8 Recognition of an overseas marriage

2.8 (ii) Recognition of a same-sex overseas marriage

A same-sex marriage entered into legally overseas is now recognised as a valid marriage by the courts in England and Wales (under s. 10 of the Marriage (Same Sex Couples) Act 2013). (Similar provisions exist for Scotland.)

2.11 Same-sex marriage

The introduction of same-sex marriage

The Marriage (Same Sex Couples) Act 2013 has introduced same-sex marriage (‘gay marriage’) in England and Wales, with the first of these marriages being able to take place since 29 March 2014.

Recognition of same-sex foreign marriages

Same-sex couples who are legally married abroad under foreign law are now (since March 2014) recognised as being married in England and Wales (under s. 10 of the Marriage (Same Sex Couples) Act 2013). Before this date, it was only possible for such couples to be recognised in England and Wales as civil partners.

Same-sex marriages in British consulates and military bases

Since 3 June 2014, some British consulates and armed force bases overseas can now con duct same-sex marriage ceremonies.

The legal effects of same-sex marriage

The legal effects of same-sex marriage are largely the same as those for opposite-sex marriage except that a same-sex spouse cannot divorce on the ground of adultery and cannot have his or her marriage annulled on the ground of non-consummation (see Sched. 4 of the Marriage (Same Sex Couples) Act 2013).
The Act also fails to equalise the law in relation to the pension inheritance rights of same-sex and opposite-sex spouses. Same-sex spouses are treated as civil partners for the purposes of occupational pension rights; and as such, a surviving same-sex spouse is not entitled to the full value of the deceased spouse’s pension as the law only requires employers to pay same-sex survivor pensions based on contributions made since 2005 (see Sched. 9, para. 18(1) of the Equality Act 2010). The Marriage (Same Sex Couples) Act 2013 does, however, provide for a review of the differences in survivor benefits in occupational pension schemes between opposite-sex couples and same-sex couples in legal relationships. The review will look at the effect of eliminating differences in treatment because of sexual orientation. A report of the review is expected on 1 July 2014.

Same-sex marriage in the rest of the UK

Same-sex marriage was legalised in Scotland by the Marriage and Civil Partnership (Scotland) Act 2014. The first same-sex marriages in Scotland are expected in autumn 2014. There is no legislation to allow for same-sex marriage in Northern Ireland; and in April 2014 the Northern Ireland Assembly (for the third time) rejected a motion calling for the introduction of same-sex marriage.

2.11 Proposals to introduce same-sex marriage

Conversion of a civil partnership into a same-sex marriage

The government is proposing (before the end of 2014) to make changes to the law to permit civil partners to convert their civil partnership into a marriage (see s. 9 of the Marriage (Same-Sex Couples) Act 2013, which is not yet in force).

Change of gender of married persons or civil partners

The government is also proposing to make changes to the law to permit persons to change their legal gender without having to end their marriage (or civil partnership) (see s.12 of the Marriage (Same-Sex Couples) Act 2013, which is not yet in force). This will remove the current requirement that a person who wishes to legally change their gender must end their marriage (or civil partnership) before a full gender recognition certificate can be issued.

Further reading and references

Fairbairn C, ‘Marriage of same sex couples across the UK: What’s the same and what’s different?’ (15 May 2014) House of Commons Library Research Paper 14/29.



January 2014 update

2.1 Marriage

Statistics on marriage

According to figures from the Office for National Statistics (ONS), there were almost 2 per cent more marriages in 2011 than in 2010 (247,890 in 2011 compared to 243,808 in 2010). The majority of marriages involved couples aged 25 to 29 and were civil ceremonies. The percentage of marriages featuring civil ceremonies has also increased: from 64 per cent in 2001 to 70 per cent in 2011.

2.4 (a)(iv) The marriage ceremony: other religious marriages


A Church of Scientology venue can now be recorded as a place of meeting for religious worship with the effect that a valid marriage can be performed there

The Supreme Court so held in the following case:

For the Supreme Court’s press summary of the case and the full judgment, see http://www.supremecourt.gov.uk/decided-cases/.

2.4 (b) The marriage ceremony: breach of the formality requirements

No longer a criminal offence to conduct a marriage ceremony outside ‘specified hours’

The Ministry of Justice announced in 2013 that it is no longer a criminal offence to conduct a marriage ceremony ‘outside specified hours’ as section 4 of Part I of the Marriage Act 1949 (which provides that marriages may only be ‘solemnized at any time between the hours of eight in the forenoon and six in the afternoon’) has been repealed by the Protection of Freedoms Act 2012. The same rule also applies to civil partnerships

A void marriage or a non-marriage

In the following case the marriage was held to be a void marriage, not a non-marriage:

2.6 Forced marriages: protection under the criminal law

New provision to introduce a crime of forcing someone to marry

In 2013 the Government introduced clauses 108-110 in Part 10 (‘Forced Marriage) of the Anti-Social Behaviour, Crime and Policing Bill 2013-14 in order to make both forced marriage and breach of a forced marriage protection order criminal offences in England and Wales, and Scotland. This follows on from the Government’s consultation, on 8 June 2012, and David Cameron PM’s subsequent announcement that the Government had decided to make Forced Marriage a criminal offence. On 8 June 2012 the Home Office also published a summary of consultation responses, which showed a majority of respondents favouring criminalisation of forced marriage.
For the content, a summary and progress of the Bill, see http://services.parliament.uk/bills/

2.10 Civil partnership

Annual statistics on civil partnerships

The Office for National Statistics (ONS) has published a bulletin presenting annual statistics on civil partnerships that were formed in the UK in 2012. The provisional number of civil partnerships in the UK in 2012 was 7,037, an increase of 3.6 per cent since 2011. The average age of men forming a civil partnership in the UK in 2012 was 40 and for women it was 37.6 years. The provisional number of civil partnership dissolutions granted in England and Wales in 2012 increased by 20 per cent on 2011: from 663 to 794.

2.11 Proposals to introduce same-sex marriage

The introduction of same-sex marriages in England and Wales

The Marriage (Same Sex Couples) Act 2013 received the Royal Assent on 17 July 2013. The first same-sex weddings are due to take place on 29 March 2014.

From June 2014, some consulates, military bases and chapels overseas will be able to conduct same-sex marriage ceremonies. Later in 2014, civil partners will be able to convert their partnership into a marriage. Persons will also be able to change their legal gender while remaining married. Under the Act, religious organisations will not be required to conduct same sex ceremonies unless they choose to do so; and the Churches of England and Wales will not be allowed to conduct them at all.

Same-sex marriage developments abroad

New Zealand In April 2013 New Zealand became the first Asia-Pacific country to legalise gay marriage. MPs passed the Marriage (Definition of Marriage) Amendment Bill by a large majority with same sex marriage becoming legal in New Zealand on 19 August 2013.

France In August 2013, the French National Assembly approved gay marriage legislation, but not without considerable opposition from the public in the form of large-scale demonstrations.

Australia The Australian Capital Territory (Canberra) passed legislation in October 2013 making it the only jurisdiction in Australia to legalise same-sex marriage. However, in December 2013, the Canberra High Court subsequently ruled that this law was invalid. The national Government successfully argued that the law created confusion, since in federal legislation marriage was defined as between a man and a woman. The gay marriages entered into in Canberra will now be annulled. Australia’s Prime Minister, Tony Abbott, is opposed to same-sex marriage, and in 2012 a bill allowing same-sex marriage was voted down in both houses of Australia's national Parliament.


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