gra 2004, nullity non-marriage (sr)
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PresentationTRANSCRIPT
GENDER RECOGNITION ACT, NULLITY & NON-MARRIAGE
Dr Sara Ramshaw 7 October 2015
Aims of LectureISSUES RELATING TO FORMALISED RELATIONSHIPS• Gender Recognition Act 2004• Nullity• Non-Marriage
Summary of Last Lecture
FORMALISED RELATIONSHIPS• Marriage• Civil Partnership• Same Sex Marriage
Continuing …
from last weekFURTHER
QUESTIONS/DEBATES
Does marriage deserve the value placed on it and its
privileged legal position in UK society?
Rosemary Auchmuty challenges the desire to seek access to marriage: ‘… formal equality claims are not always
progressive. … [W]hether you see marriage as an oppressive bastion of male power, as the second-wave feminists did, or simply as outmoded and irrelevant, as many contemporaries do, the goal should surely be to get rid of it, or at least to let it die out of its own accord – not to try and share in its privileges, leaving the ineligible out in the cold.’
(Auchmuty 2008: 497)
Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (London: Palgrave Macmillan 2013).
ARGUMENTS FOR (SAME-SEX) MARRIAGE
ARGUMENTS FOR (SAME-SEX) MARRIAGE
ARGUMENTS FOR (SAME-SEX) MARRIAGE
ARGUMENTS AGAINST (SAME-SEX) MARRIAGE
ARGUMENTS AGAINST (SAME-SEX) MARRIAGE
Should UK society be encouraging other kinds of formalised relationships?
Heterosexual Civil Partnership
Rebecca Steinfeld and Charles Keidan
Burden v United Kingdom (2008)
Ferguson and Others v United Kingdom (2011)
Dismissed as inadmissible due to introduction of same-sex
marriage in England and Wales
‘For some people, civil partnerships are marriage without the history of sexism and without the traditional
trappings of what a wedding is supposed to be. It is a simple, more
informal, modern form of relationship recognition.’
(Peter Tarchell, ‘Equal Love’ campaign)
Latest Update• On 27 February 2015, the High Court in
London granted permission for Rebecca Steinfeld and Charles Keidan’s case for judicial review of the ban on opposite sex civil partnership to proceed.
• Date of judicial review announced as 19 & 20 January 2016.
Part 1Gender
Recognition Act
Can a post-operative transsexual marry in their newly-acquired gender?
E.g., can a male to female transsexual marry a man?
Transexualism• Is a medically recognised gender identity
disorder, labelled ‘gender dysphoria’. • Gender dysphoria occurs when a person who
appears to be biologically of a particular sex believes or feels that he or she is psychologically a member of the opposite sex.
• May opt for gender reassignment surgery, which involves hormone treatment and perhaps even surgery.
1971Corbett v Corbett
• Ormrod J.:oAn individual’s sex is fixed at birthoMedical ‘test’ and definition to
determine the legal statusoPerson could not marry in their post-
operative gender; marriage void
1987Rees v UK
• ECtHR:oNo violationoUK had wide margin of appreciation
(discretion)
1991Cossey v UK
• ECtHR:oNo violationo BUT was conscious ‘of the
seriousness of the problems facing transsexuals and the distress they suffer’; ‘appropriate legal measures in this area should be kept under review’
1998Sheffield and
Horsham v UK
• ECtHR:oNo violationo BUT growing impatient
2002Bellinger v Bellinger
• Court of Appeal:oThe majority, having considered up to
date medical evidence, adhered to the Corbett approach
oQuestion for Parliament, not the courtsoCritical of the lack of progress
2002Goodwin v UK
• Of issue (amongst other specific points):oThe failure of the UK government to award a pension at the age of 60 to Christine Goodwin oThe refusal of the UK government to issue Christine Goodwin with a new NI number oThe refusal of the UK government to allow Christine Goodwin to marry her male partner
2002Goodwin v UK
• EctHR:oUK law violated Article 8 (respect for
private and family life)and Article 12 (right to marry) of the Convention
oOn what grounds?
2002•UK Government announced in Dec 2002 that it would introduce legislation to reflect the decision in Goodwin•In the meantime, Mrs Bellinger appealed to the House of Lords that domestic legislation was incompatible with Arts 8 and 12 of the Convention
2003Bellinger v Bellinger
• HoL:oMrs. Bellinger sought legal recognition
of her 1981 marriage to a mano Court sympathetic, BUT ruled that the
marriage was void oOn what grounds?
2003Bellinger v Bellinger
• HoL: Declared s. 11(c) of the Matrimonial
Causes Act 1973 incompatible with Articles 8 and 12 of ECHR
Led to introduction of Gender Recognition Act 2004 (extends to NI)
Gender Recognition Act 2004Provides a common framework in the UK whereby transsexual people may apply to a Gender Recognition Panel for legal recognition in their acquired gender
On the issue of a full gender recognition certificate, the person will be entitled to a new birth certificate reflecting the acquired gender and will be able to marry in this new gender
Gender Recognition Certificate
NOTE: no requirement to have had gender reassignment surgery
Prior to 2013• Before the enactment of the Marriages (Same
Sex Couples) Act 2013, s. 11(c) of the MCA 1973 required that applicants who were married or in a civil partnership could only be issued an interim GRC.
• A full GRC would only be issued if the applicant brought the existing marriage or civil partnership to an end within six months of the issuance of the interim GRC.
Prior to 2013
• On the issue of a full GRC, the person will be entitled to a new birth certificate reflecting the acquired gender and will be able to marry in this new gender.
Marriage is voidable if at the time of the marriage one party to the marriage did not know
that the other was previously of another gender (i.e.,. had
obtained a GRC) (s. 12(h) of MCA 1973).
New ground for voidable marriage
Significance?
Law no longer regards a person’s sex as immutable
or fixed at birth Reinforces heterosexual definition of marriage?
'Rather than accept a fluid definition of marriage to account for that changeability, [it requires] a choice to be made to fix identity so that intimate partners [can] make an orthodox heterosexual marriage. Further, the basis for choice of gender identity remain[s] rooted in a medical or psychiatric dysfunction. It [is] seen as an abnormality that [can] be remedied by law for the purpose of encouraging “normal” traditional marriage.'
(Diduck and Kaganas 2006, p 54)
Post 2013How has the Marriage (Same Sex Couples) Act 2013 affected this issue?
– Prior to the removal of section 11(c) of the MCA 1973, it was unclear whether a transsexual person could marry in her or his acquired gender, and how to deal with intersexed persons. Section 12 of the Marriage (Same Sex Couples) Act 2013 brings into effect Schedule 5, which amends that GRA 2004 to allow persons to change their gender without first having to end their existing marriage.
– What about civil partnerships?
Part 2Nullity
1. Valid marriage;2. Void marriage;3. Voidable marriage; 4. Non-marriage, or ceremony of no legal significance.
Law of Nullity
Divorce v
Annulment
Divorce versus annulment• Where a marriage is annulled, the law recognises that
there has been some flaw in the establishment of the marriage, rendering it ineffective.
• Where divorce, marriage viewed as proper, but is later ended.
• No bar to bringing nullity proceedings in first year of marriage.
• Different grounds for nullity and divorce.• Different procedures, e.g., nullity proceedings,
whether defended or not, are heard in open court with parties giving oral evidence. This is controversial in instances of forced marriages.
Law of NullityCanon
LawMarriage indissoluble
– ‘what God has joined together …’
Law of NullityModern
LawMatrimonial Causes Act (MCA) 1973
VOIDNo marriage ever existed
VOIDABLEMarriage exists up to point of decree of nullity
versus
VOID (MCA, s. 11) VOIDABLE (MCA, s. 12)No marriage ever existed. Marriage exists up until point of
decree of nullity.No need to apply for a decree of nullity, but can if wish to remove uncertainty of the relationship.
Must apply for decree of nullity.
Anyone (even 3rd party) can apply.
Only parties to ‘marriage’ can apply.
Apply at any time, even after death of one of the parties.
Only during lifetime of parties.
A decree of nullity gives the court jurisdiction under Part II of the MCA 1973 to grant finance and property orders equivalent to those made on divorce.
Same as for void marriages.
Two Stages to Decree Of Nullity
Decree nisiOn or after which court can decide
financial or property orders
Decree absolute
GROUNDS: VOID (MCA, s.11)
No longer ground
OTHER
Policy grounds
City of Westminster v IC [2008]
GROUNDS: VOIDABLE (MCA, s. 12)
Inability to consummate
Wilful refusal to
consummate
Venereal Disease
Mental disorder
Lack of consent Pregnant
NoneBars to decree
of nullity
VOID
•Time•Knowledge
•Conduct
Bars to decree
of nullity
VOIDABLE
VOID Civil Partnerships (CPA, s. 49)
VOIDABLE Civil Partnerships (CPA, s. 50)
Mental disorder
Lack of consent
Pregnant
•Time•Conduct
Bars to decree
of nullity
VOIDABLE
Effect of Decree
VOIDABLE
VOID
Issues
Do we need a law of nullity?
Should non-consummation as ground for nullity be abolished?
Part 3Non-marriage
VOID marriage
NON-MARRIAGE
versus
VOID NON-MARRIAGEFailure to comply with formalities required for a valid marriage.
Marriage so flawed that cannot even be considered a void marriage.
Parties are entitled to a decree of nullity and thus will be able to apply for finance and property orders under Part II of the MCA 1973.
Parties are not entitled to a decree of nullity and will thus not be able to apply for finance and property orders under Part II of the MCA 1973.
Non-marriage is a judicial creation.
Thus, case law is extremely important.
Case law• Gereis v Yagoub [1997] 1 FLR 854: parties to a
marriage conducted in church not licenced for marriage by a priest who was not licenced to conduct marriages were granted a decree of nullity as the parties had knowingly and wilfully disregarded the formalities. It bore all the hallmarks of a Christian marriage and the attendees believed it to be a subsisting marriage.
Case law• Ghandi v Patel [2002] 1 FLR 603: Hindi
marriage conducted by Brahmin in a London restaurant was a non-marriage.
• Alfonso-Brown v Millwood [2006] EWHC 642 (Fam): held that neither party believed the ceremony, which took place in Ghana, was anything but an engagement ceremony. Thus, deemed to be a non-marriage.
(1) Ceremony purported to be lawful marriage?
(2) Bore all or enough hallmarks of marriage?
(3) Did key participants understand it as a lawful marriage?
(4) Did those in attendance reasonably perceive or believe it to be a subsisting marriage?
Hudson v Leigh (2009)
El Gamal v Al Maktown [2011] EWHC 3763
‘I have no doubt that the intention [of the parties] is relevant to the status achieved or not achieved by a questionable ceremony, as being one of the many considerations which need to be taken into account. It is particularly relevant in the presumably unusual circumstances where the parties did not intend to create a valid marriage, or where they realised that for some reason they would not be able to do so. But the converse does not apply. It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nonetheless suffices if the participants hopefully intended, or believed, that the ceremony would create one.’
Case law• Dukali v Lamrani [2012] EWHC 1748: parties
married at the Moroccan Consulate. Although the ceremony complied with Moroccan law, it did not comply with English law even though the parties and staff at Consulate thought it did. Held that, even though the parties believed in the validity of the marriage, as it wholly failed to comply with the formalities required under English law, it was a non-marriage.
Case law• MA v JA [2012] EWHC 2219 (Fam): while the
formalities were not complied with, it bore the hallmarks of a valid marriage, such as being conducted in an authorised building (registered mosque) in the presence of an authorised person, and there were no lawful impediments to marriage. Parties did not knowingly and wilfully breach the requirements of the Marriage Acts (they were not told that the ceremony would not create a valid marriage under English law).
Most RecentAsaad v Kurter [2013] EWHC 3852 (Fam) •FACTS: Petitioner was Syrian, respondent Turkish; they underwent a ceremony in Syria in the Syriac Orthodox Church. Although the petitioner was able to produce a ‘marriage certificate’ document, the marriage was not registered with the Syrian authorities, nor was permission obtained - as was required - as the respondent was not a Syrian national. •HELD: Moylan J found that it was a marriage which was not valid as a result of a failure to comply with the required formalities and as such was to be properly described in English law terms as a void marriage. Accordingly, the Petitioner was entitled to a decree of nullity.
Most RecentAccording to Lily Mottahedan, Barrister at Law:
‘Asaad v Kurter, does provide a route to a more just outcome in certain “non-marriage cases” (those contracted abroad) even if the outcome of the case underscores the enduring difficulties faced by Petitioners in similar cases but where the questionable ceremony was conducted in this jurisdiction’.
SUMMARY• A non-marriage will be found if the ceremony or
event bears no resemblance to the requirements of a valid marriage under English law, even if the parties believe or intended this to be the case.
• A valid marriage will be found where the ceremony meets some of the requirements under English law and the parties intended to create a valid marriage.
• A void marriage will be found if some of the requirements were complied with, but the parties knowingly and wilfully disregarded to comply with all the formal requirements (compare with Asaad case).
Part 4Issues
Relating to Non-marriage
UPDATE:Legality of humanist marriage
ceremonies
‘Fringe’ issue
Issue 1
Law Commission Report
(Dec 2015)
Government review of marriages by non-
religious belief organisations
Issue 2:Presumption of marriage under
English common law
‘Ordinarily, proof of the marriage certificate is sufficient to satisfy the court ... But it has long been the position in English law that the absence of a valid marriage
certificate is not fatal to the proceedings. Even where there
is no direct evidence of the marriage ceremony or, indeed,
no evidence of formal registration, the law does not
presume against the existence of a valid marriage.’
Pazpenade Vire v Pazpenade Vire [2001] I FLR 460, 463
Long cohabitation & reputation for being married
Cohabitation after ceremony
of marriage
Chief Adjudication Officer v Bath [2000]
References and Further Readings• Rosemary Auchmuty, ‘What's so special about
marriage? The impact of Wilkinson v Kitzinger' (2008) 20(4) Child & Family Law Quarterly 479.
• Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage (London: Palgrave Macmillan, 2013).
• Chris Bevan, ‘The role of intention in non-marriage cases post Hudson v Leigh’ (2013) 25 Child & Family Law Quarterly 80.
• Alison Diduck and Felicity Kaganas, Family Law, Gender and the State: Text, Cases and Materials (3rd ed) (Oxford: Hart Publishing, 2006).
References and Further Readings
• Stephen Gilmore, ‘The Legal Status of Transsexual and Transgender Persons in England and Wales’ in J.M. Scherpe (ed), The Legal Status of Transsexual and Transgender Persons (Intersentia, 2014).
• Lily Mottahedan, ‘Asaad v Kurter: The latest round in “non-marriage” cases - is the tide turning?’ (2014) Family Law Week (see http://www.familylawweek.co.uk/site.aspx?i=ed127612 ).
• Rebecca Probert, ‘The evolving concept of 'non-marriage’ (2013) 25 Child & Family Law Quarterly 314.
