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From common law marriage to civil partnerships: how does the law define different relationships?

18 October

From common law marriage to civil partnerships: how does the law define different relationships?

By Demelza Wrigley

Given the recent press coverage surrounding marriage, civil partnerships and the forthcoming changes, it may be helpful to set out the definitions of various kinds of relationship, formal and informal, so that you are informed about the terms of your own relationship.

 

Marriage

Marriage is defined as “a voluntary union for life of one man and one woman, to the exclusion of all others”.  This was defined by Lord Penzance in the case of Hyde v Hyde and Woodmansee as far back as 1866.  This was then enshrined in the Matrimonial Causes Act 1973, s.11(c)

A marriage can be dissolved with reference to the facts of behaviour, adultery, 2 years separation with consent, 5 years separation without consent or desertion.

 

Civil Partnership

This is defined in the Civil Partnership Act 2004, s.1(1) as “a relationship between two people of the same sex (‘civil partners’)” which is formed when they register as civil partners of each other in England (under Part 2 of the Act), Scotland (under Part 3 of the Act), Northern Ireland (under Part 4 of the Act) or outside the Untied Kingdom.  There is also provision for recognition of registration of an overseas relationship.

This is the first point at which a relationship between two persons of the same gender was to be legally recognised.  A civil partnership cannot be dissolved on the basis of adultery, which is defined as “voluntary sexual intercourse between a man and a woman who are not married to each other but one of whom at least is a married person” (Clarkson v Clarkson (1930) 143 LT 775).  Therefore voluntary sexual intercourse between two persons of the same sex does not meet the definition.  The other facts can be used.

 

Same Sex Marriage

s.1 of the Marriage (Same Sex Couples) Act 2013 sets out that marriage of same sex couples is lawful.

As with civil partnerships above, a same sex marriage cannot be dissolved on the basis of adultery, but the other facts can be relied upon.

 

Common Law Marriage

Common law marriage is not a legal concept.  A couple do not automatically acquire rights against property or assets owned by the other party simply by virtue of the length of a relationship.  This is a common misconception.  There are certain circumstances in which one partner may acquire an interest in a property owned by the other, but this is not based purely on the length of any relationship, or the fact that the parties have children together.  The Law Commission is considering reforms to deal with cohabiting couple but there are currently no automatic legal rights.

 

Demelza Wrigley

 

Photo by Nick Karvounis on Unsplash