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The Definition of Marriage in English Law

Paper type: Essay
Pages: 7 (1651 words)
Categories: Age, Law, Marriage
Downloads: 12
Views: 406

The legal definition of marriage, stated in section 11 of the Matrimonial Causes Act 1973 (MCA 1973), is ‘The voluntary union for one man and one woman to the exclusion of others for life’. This, therefore, means that two men cannot get married legally, neither can two women. It also means that any married individual cannot go on to marry another individual. This is outlined in the case of ‘Hyde v Hyde 1866’. In this case, John Hyde filed for a divorce (in England) against his wife Lavinia Hyde, due to adultery.

Lavinia travelled to Utah and married another man, which is what led John to file for divorce. Johns claim was dismissed by the courts due to the fact Lavinia’s marriage in Utah did not relate to the English laws on marriage and was therefore deemed not valid. The court could also not make a judgement on the law in a foreign country due to the fact they had little knowledge on it.

The marriage act was first acknowledged in 1949, yet came into effect in 1950. Before 1950, people had the right to marry anyone. An individual could marry a child under the age of 16. However, since then the Act has been amended by parliament and brought a stop to this and banished marriage for anyone under the age of 16.

In 1969, the Divorce Act was passed. Before this, people were married for life, you could only divorce your partner if you could prove that they have committed adultery, which was quite hard to prove. However, the Divorce Act allowed a couple to divorce simply through the reason for marital breakdown. In theory, if one person wanted it to be over, then it was.

The Civil Partnership Act was introduced in 2005. This allowed same-sex couples to have the same legal rights as a heterosexual married couple. Previously, they were allowed to be together, but not allowed to legally have a valid marriage. This didn’t change the fact that religious places can deny marrying them. They do not have to legally marry a gay couple if it’s against their religious views.

In 2012, an Act called the Protections of Freedom Act 2012 just removed the restrictions on the timing of marriage. It allowed people to marry whenever they want, rather than between 8 am and 6 pm. This Act was officially given the Royal Assent on 1st May 1949.

In 2013, the Marriage (Same-Sex Couples) Act was introduced. It was given the royal assent on 17th June 2013 and officially came into practice from the 29th March 2014. By the end of 2014, civil partners were able to convert their partnership into an actual valid marriage. However, religious institutions such as the Church of England, Church of Wales and Catholic Churches are still against the idea of Same-Sex Act. The Church of England stated ‘marriage is between opposite-sex couples’ and had a canon effect on all other highly religious churches. Even though the Same-Sex Act is in place, any place of religion was refused to marry them, they are not obliged to follow them under law. This Act changed the legal definition of marriage to ‘The voluntary union between two parties, to the exclusion of others’. In the case of Bellinger v Bellinger, there was a transsexual woman who was previously born a male. She had surgery to replace her penis and testicles for a vagina with no ovaries or reproductive characteristics of a woman. Shortly after this, she married a male and wanted to seek if the marriage would be deemed valid. She then found out it would be an invalid marriage due to the section 11 of the Matrimonial Causes Act 1973 which states that a marriage can not be valid if the parties are not both ‘respectively female and male’. Due to the fact she was born a male, she was identified as a male regardless of her undergoing sex-change surgery. She debated and appealed many times, in which most got turned down, for the right of transsexual people. This then led to the government introducing the Gender Recognition Act which was given the Royal Assent on 1st July 2004. This allowed people to identify as whatever gender they choose. For example, a female-to-male person will now be legally identified as a male.


Cohabitation can be generally described as ‘to live together as a couple, without being married’. There are many differences in the legal rights and obligations of a married couple and a cohabiting couple:

Marriage can only be ended by a formal divorce and there are set procedures for the beginning and ending a marriage. On the other hand, cohabitation you can start living together (in some circumstances, you may have a cohabitation agreement) and a cohabiting agreement can be ended without the need of any formality.

Also, in a cohabiting relationship, neither party has the responsibility to support their partner financially, whereas a married couple are obliged to support their partner.

In a cohabiting couple, if you’re an unmarried partner of the child’s birth mother, you will not have any parental responsibility. You may get it by jointly registering the child’s birth, a parental responsibility agreement or a parental responsibility order from the court. I’m a married couple, you will have parental responsibility if you’re:

  • The child’s birth mother, or
  • The husband of the child’s birth mother, or
  • The female married partner of the child’s birth mother and you are treated as the child’s legal parent, or
  • An adoptive parent.

With property rights, a cohabiting couple, the person with their name on the writ for the house will have all rights over that property, the other partner has no rights to the property unless it’s left by a will. Also, an unmarried partner will not benefit from inheritance tax exemptions that a married couple will.

When it comes to crime, a married person can claim that their partner persuaded them to commit the crime. However, this defence is not acceptable for cohabiting couples. The Director of Public Prosecutions are the only people who can authorise cases of theft from a married couple. With unmarried couples, you can be forced to give evidence and statements in court against your partner, in both criminal and civil cases. If you refuse to give evidence, you may be imprisoned for preventing the courts of justice. However, a married partner can only be forced to give evidence in civil cases; they do not have to give evidence for the prosecution in a criminal case.

When it comes to property, it can be owned jointly or solely.
Sole owners – The main way the non-owning unmarried partner can get guarantee a right is by asserting a profitable interest where the court formally perceives the donation an individual has made to a property. For a wedded couple, the two gatherings have an equivalent opportunity to stay in the marital home.
Joint owners – Both cohabiting and unmarried couples have the right to stay in the home. However, cohabiting couples have rights to only a beneficial interest.

Both couples are treated equally with benefits. Although a married couple will be taxed as one person, whereas cohabiting couples will be taxed as two separate people.

If you’re married to a UK citizen, you can get a visa to remain the UK and you may apply for the right to stay permanently. This is only if they have been in the UK for at least three years. This law does not apply to cohabit couples at all.

Domestic violence laws apply the same to cohabiting and married couples.


Previously, with the MCA 1973, you would be required to be at least 16 years old (with parental consent), of the opposite sex and to have not been married before.

With the Civil Partnership Act 2004, all the requirement were still the same, apart from the sex. They made it legal for gay couples to have rights as a married couple, though they weren’t allowed to legally have a valid marriage. This was until the Marriage Same-Sex Act 2013 came into place. This allowed civil partners to actually have a legal marriage without any restrictions, and also allow places of religion to marry them (if they choose).
Some basic requirements today that you must fulfil are:

  • Minimum of 16 years (capacity to marry)
  • Not be in a marriage/ civil partnerships at the set time (capacity to marry)
  • Must not be closely related (capacity to marry)
  • You must also consent to the marriage, as it’s stated that marriage is a ‘voluntary union’, without consent the marriage is void.


For both civil partnerships and legal marriages, you can get married in:

  •  In a place of religion (Church, Temple etc)
  • Any registered building (Football grounds, castles etc)

You can basically get married anywhere, as long as you have a registered person to marry you.
The Registrar General registers buildings.

There are many different types of ceremonies, a few of them are:

  • Religious ceremonies – if you and you’re partner are both religious then it is likely you will want a religious ceremony. These can be performed in places of worship (Church of England, Church of Wales, Mosques, Temples)
  • Same-sex ceremonies – this is also known as a civil partnership and it allows you to have the same legal rights and responsibilities as a married, heterosexual couple would.
  • Interfaith ceremonies – this is for when you and your partner are of different faiths, you can celebrate in a place which would allow you to bring both your religions into the ceremony, rather than just one. A specialist can help you achieve this.
  • Civil ceremonies – Civil ceremonies are for people of no religion who may marry in a registered building such as a hotel or a town hall. You will often get to write your own vows and it will be conducted by a registrar.

Cite this essay

The Definition of Marriage in English Law. (2020, Sep 09). Retrieved from https://studymoose.com/the-definition-of-marriage-in-english-law-essay

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