FAMILY LAW — TOPIC 2
Marriage, Civil Partnership and Cohabitation
SECTION A: MARRIAGE — LEGAL DEFINITION & ELEMENTS
The Legal Definition of Marriage
The foundational legal definition of marriage comes from Hyde v Hyde (1866), where Lord Penzance
defined marriage as:
"The voluntary union for life of one man and one woman to the exclusion of all
others."
— Lord Penzance, Hyde v Hyde (1866)
This definition breaks into 4 key elements, each of which has been developed by statute and case law:
Element 1: 'Voluntary' — Free Consent
Marriage must be freely entered into by both parties. This is reinforced by Article 16 of the Universal
Declaration of Human Rights (UDHR): 'marriage shall be entered into only with free and full consent of
the intending spouses.'
✓ ARRANGED MARRIAGE ✗ FORCED MARRIAGE
Families select the future spouse, BUT both One or both parties have not given valid consent
parties give valid consent. LAWFUL. AND there is duress involved. UNLAWFUL.
Legal protections against forced marriage:
• Application to annul the marriage (nullity) on grounds of lack of consent
• High Court's inherent jurisdiction (including wardship)
• Forced Marriage (Civil Protection) Act 2007 — inserted s 63A into the Family Law Act 1996
• Courts can make Forced Marriage Protection Orders (injunctions) to protect a person from
being forced into a marriage or from any attempt to force them
• Criminal offence of forced marriage also exists
Element 2: 'For Life' — Permanence
, The parties must contemplate the union being for life AT THE TIME they enter into it — even though in
practice a marriage may end by divorce or nullity. A marriage can be lawfully ended by: decree of
nullity, divorce, or death of a party.
💡 KEY POINT: 'For life' does not mean divorce is impossible. It means the INTENTION at
the time of marriage must be for a lifelong union. A marriage under a regime that allows non-
judicial dissolution may still be valid if the parties intended it to be permanent when they
married.
Element 3: 'One Man and One Woman' — Now Evolved
The original definition assumed a binary, opposite-sex union. This has been significantly reformed:
• Corbett v Corbett (1971) — held that sexual identity was FIXED AT BIRTH, regardless of
gender reassignment surgery. This was a restrictive approach that prevented trans people from
marrying in their acquired gender.
• Civil Partnership Act 2004 — created civil partnerships for same-sex couples, giving equivalent
legal status to marriage.
• Marriage (Same Sex Couples) Act 2013 — from 29 March 2014, same-sex couples can
MARRY. The Hyde v Hyde 'one man and one woman' requirement is therefore OBSOLETE for
marriages in England & Wales.
💡 KEY POINT: In an exam, always note that the Hyde v Hyde definition is OUTDATED for
the 'one man and one woman' element. The law has moved on significantly through statute.
Element 4: 'To the Exclusion of All Others' — Monogamy
Marriage in England and Wales is strictly monogamous. Marrying while already married to another
person is the criminal offence of BIGAMY under s 57 of the Offences Against the Person Act 1861.
• It MAY be a defence to bigamy if there is a reasonable belief that the first spouse is dead — but
the second marriage would STILL be void.
• Polygamous marriages contracted abroad are not recognised in England and Wales if either
party was domiciled here at the time (s 11(d) MCA — covered in Nullity).
SECTION B: FORMALITIES OF MARRIAGE — WHO CAN MARRY?
To enter a valid marriage in England & Wales, both parties must satisfy ALL of the following:
• Be aged 18 or over — OR aged 16-17 with parental/guardian consent (or court order
granting consent)
• Not be within the PROHIBITED DEGREES OF RELATIONSHIP (see Nullity notes for the
full table)
• Not already be married to, or in a civil partnership with, another person
Marriage, Civil Partnership and Cohabitation
SECTION A: MARRIAGE — LEGAL DEFINITION & ELEMENTS
The Legal Definition of Marriage
The foundational legal definition of marriage comes from Hyde v Hyde (1866), where Lord Penzance
defined marriage as:
"The voluntary union for life of one man and one woman to the exclusion of all
others."
— Lord Penzance, Hyde v Hyde (1866)
This definition breaks into 4 key elements, each of which has been developed by statute and case law:
Element 1: 'Voluntary' — Free Consent
Marriage must be freely entered into by both parties. This is reinforced by Article 16 of the Universal
Declaration of Human Rights (UDHR): 'marriage shall be entered into only with free and full consent of
the intending spouses.'
✓ ARRANGED MARRIAGE ✗ FORCED MARRIAGE
Families select the future spouse, BUT both One or both parties have not given valid consent
parties give valid consent. LAWFUL. AND there is duress involved. UNLAWFUL.
Legal protections against forced marriage:
• Application to annul the marriage (nullity) on grounds of lack of consent
• High Court's inherent jurisdiction (including wardship)
• Forced Marriage (Civil Protection) Act 2007 — inserted s 63A into the Family Law Act 1996
• Courts can make Forced Marriage Protection Orders (injunctions) to protect a person from
being forced into a marriage or from any attempt to force them
• Criminal offence of forced marriage also exists
Element 2: 'For Life' — Permanence
, The parties must contemplate the union being for life AT THE TIME they enter into it — even though in
practice a marriage may end by divorce or nullity. A marriage can be lawfully ended by: decree of
nullity, divorce, or death of a party.
💡 KEY POINT: 'For life' does not mean divorce is impossible. It means the INTENTION at
the time of marriage must be for a lifelong union. A marriage under a regime that allows non-
judicial dissolution may still be valid if the parties intended it to be permanent when they
married.
Element 3: 'One Man and One Woman' — Now Evolved
The original definition assumed a binary, opposite-sex union. This has been significantly reformed:
• Corbett v Corbett (1971) — held that sexual identity was FIXED AT BIRTH, regardless of
gender reassignment surgery. This was a restrictive approach that prevented trans people from
marrying in their acquired gender.
• Civil Partnership Act 2004 — created civil partnerships for same-sex couples, giving equivalent
legal status to marriage.
• Marriage (Same Sex Couples) Act 2013 — from 29 March 2014, same-sex couples can
MARRY. The Hyde v Hyde 'one man and one woman' requirement is therefore OBSOLETE for
marriages in England & Wales.
💡 KEY POINT: In an exam, always note that the Hyde v Hyde definition is OUTDATED for
the 'one man and one woman' element. The law has moved on significantly through statute.
Element 4: 'To the Exclusion of All Others' — Monogamy
Marriage in England and Wales is strictly monogamous. Marrying while already married to another
person is the criminal offence of BIGAMY under s 57 of the Offences Against the Person Act 1861.
• It MAY be a defence to bigamy if there is a reasonable belief that the first spouse is dead — but
the second marriage would STILL be void.
• Polygamous marriages contracted abroad are not recognised in England and Wales if either
party was domiciled here at the time (s 11(d) MCA — covered in Nullity).
SECTION B: FORMALITIES OF MARRIAGE — WHO CAN MARRY?
To enter a valid marriage in England & Wales, both parties must satisfy ALL of the following:
• Be aged 18 or over — OR aged 16-17 with parental/guardian consent (or court order
granting consent)
• Not be within the PROHIBITED DEGREES OF RELATIONSHIP (see Nullity notes for the
full table)
• Not already be married to, or in a civil partnership with, another person
