Formation of Marriage, Civil Partnerships and Same Sex Marriage
- teachlawhub
- Jan 12
- 6 min read
This blog will explore the legal rules and regulations that are related to the law of marriage, a key area of family law.
The Definition of Marriage:
If we look at a marriage from a purely legal (not romantic) stance then a marriage is a legally recognised union between two people who become partners in a personal relationship. It essentially is a form of a contract between two people and once a couple is married, the law gives them legal rights and responsibilities towards one another
Historically, marriage was defined in the case of Hyde v Hyde (1866) as the voluntary union for life of one man and one woman to the exclusion of all others. This case involved a man who had married under Mormon law, which allowed a man to have more than one wife. When the marriage later broke down, he applied to the English courts for a divorce. The court refused to recognise the marriage as valid under English law because it was potentially polygamous. The judge stated that marriage in English law must be a monogamous relationship, which led to the traditional definition of marriage being set out in this case. This definition emphasised that marriage must be entered into freely, must last for life, and must be monogamous. It also reflected the traditional view that marriage could only take place between a man and a woman.
The definition of marriage was updated by the Marriage (Same Sex) Act 2013 to reflect changes in society. The law now defines marriage as the voluntary union for life of either a heterosexual or homosexual couple to the exclusion of all others. This means that both opposite-sex and same-sex couples can legally marry in England and Wales.
The phrase voluntary union means that both parties must freely consent to the marriage without pressure or force.
The phrase to the exclusion of all others means that marriage must be monogamous, so a person can only be married to one partner at a time.
The Legal Rules: Age
In order for a marriage to be legally valid, certain legal rules must be satisfied. One of the most important rules concerns age. In the past, under the Matrimonial Causes Act 1973, individuals aged 16 or 17 could get married with their parental consent. However, this has now changed. Under the Marriage and Civil Partnership (Minimum Age) Act 2022, both parties must be at least 18 years old to marry. This rule applies even if parents agree, meaning that anyone aged 16 or 17 is no longer legally able to marry. The minimum age was raised to 18 in order to better protect young people from forced marriages and coercion. Parliament recognised that individuals under 18 may be more vulnerable to pressure from family or cultural expectations and may not fully understand the long-term legal and personal consequences of marriage. Raising the age limit strengthens safeguarding and ensures that marriage is entered into by adults who are better able to give free and informed consent.
The Legal Rules: Prohibited Degrees of Relationship
Another key rule is that the parties must not be within the prohibited degrees of relationship. This means that people who are closely related cannot marry. Consanguinity refers to relationships by blood or adoption, such as parents and children, siblings, grandparents and grandchildren, uncles or aunts, and nieces or nephews. Affinity refers to certain family relationships created by marriage, such as half-siblings and some step-family relationships. These rules exist to prevent marriages between close family members.
The Legal Rules: Single and Sound Mind
Both parties must also be single at the time of the marriage. This means that neither person can already be married or in a civil partnership. If someone attempts to marry while already married, they commit the criminal offence of bigamy. In addition, both parties must be of sound mind. This means they must understand the nature of marriage and be capable of giving valid consent. This requirement is supported by the Mental Health Act 1983.
The Legal Formalities:
Even if all the legal rules are met, a marriage will only be lawful if the correct formalities are followed. A marriage can take place through a religious ceremony or a civil ceremony at a registry office, which must not include any religious content, or through a religious ceremony in a church or other religious building. Civil ceremonies can only take place at certain licensed venues. Under the Marriage and Civil Partnerships (Approved Premises) Act 2005, venues must be approved by the local council. If the venue is not licensed, the marriage will not be legally valid. The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2022 allow marriages to take place outdoors at licensed venues, a change introduced during the COVID-19 pandemic that remains in force.
During the marriage ceremony, there must be two witnesses present. The couple must sign the marriage certificate, and the witnesses must also sign it. There must also be an exchange of vows, which confirms the intention of the parties to marry.
Before the marriage can take place, both parties must give 28 days notice at their local registry office. They must have lived in the registration district for at least seven days before giving notice. The notice is displayed publicly for 28 days, and the marriage must take place within 12 months of the notice being given.
Civil Partnerships:
A civil partnership is a legally recognised relationship between two people who are not related to each other. Civil partnerships were originally introduced to provide legal protection and recognition for same-sex couples at a time when marriage was only originally legally available to opposite-sex couples. Before civil partnerships existed, same-sex couples did not have access to many important legal rights, such as inheritance rights, pension benefits, or next of kin status. The introduction of civil partnerships aimed to reduce discrimination and promote equality by giving same-sex couples a formal legal status and similar rights to married couples. Registering a civil partnership gives couples legal rights and responsibilities similar to those of marriage. Civil partnerships were introduced by the Civil Partnership Act 2004 for same-sex couples. The Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019 later extended civil partnerships to opposite-sex couples, allowing both heterosexual and homosexual couples to choose this form of legal relationship.
The Legal Rules: Civil Partnerships
To enter a civil partnership, both parties must be at least 18 years old, must not already be married or in another civil partnership, and must not be blood relatives. Both parties must also have lived in the registration area for at least seven days before giving notice. As with marriage, certain formalities must be followed for the civil partnership to be lawful.
Civil partnerships are formed through a civil ceremony, usually at a registry office or another licensed venue. Religious content is not allowed at any stage of the process, and civil partnerships cannot take place in a church. Only licensed premises may be used under the Marriage and Civil Partnerships (Approved Premises) Act 2005, and outdoor ceremonies are permitted under the 2022 Regulations. During the ceremony, there must be two witnesses, the couple must sign the civil partnership document, and the witnesses must sign it. Unlike marriage, there is no legal requirement to exchange vows or speak any words.
Before entering a civil partnership, both parties must give 28 days notice at their local registry office and must have lived in the registration district for at least seven days. The civil partnership must be registered within 12 months of giving notice.
Same-Sex Marriages:
Same-sex marriage became lawful in England and Wales following the Marriage (Same Sex) Act 2013. Before this Act, same-sex couples could not marry and were limited to civil partnerships. The purpose of the 2013 Act was to promote equality by allowing same-sex couples to access marriage and the social and legal recognition that comes with it. Section 1 of the Act states clearly that marriage of same-sex couples is lawful in England and Wales.
The legal rules for same-sex marriages are exactly the same as those for opposite-sex marriages. Both parties must be at least 18 years old under the Marriage and Civil Partnership (Minimum Age) Act 2022. Both individuals must be free to marry, meaning they cannot already be married or in a civil partnership. They must not be within the prohibited degrees of relationship, so close blood or certain family relationships are not permitted. In addition, the marriage must be a voluntary union, meaning both parties must freely consent without pressure or coercion. The same formalities also apply to same-sex marriage.
The couple must give 28 days’ notice at their local registry office and must have lived in the registration district for at least seven days before giving notice. The marriage must take place within 12 months of giving notice.
The ceremony must take place at a licensed venue if it is a civil ceremony, and there must be two witnesses present. The couple must sign the marriage certificate, the witnesses must also sign, and there must be an exchange of vows.
Same-sex couples may also choose to marry in a religious ceremony, but this depends on the religious institution. Under the Marriage (Same Sex) Act 2013, religious institutions are not required to conduct same-sex marriages and must actively opt in if they wish to do so. This means that some religious institutions will allow same-sex marriages, while others may refuse, and this refusal is lawful. This balance allows protection of religious freedom while still ensuring equality under the law.
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