Family
Law
Always
argue
in
conditional
and
think
about
all
aspects
Marriage,
Civil
Partnership
and
Conceptions
of
the
Family
Introduction
• History:
o Heterosexual
o “Western”
o Sexist
o Canon
law
from
Church
o Cannot
be
a
“family”
simply
because
you
act
like
one.
Platonic
man
and
women
or
two
men
can
never
be
a
family.
o Local
Government
Act
1986-‐Prevented
local
authorities
from
teacher
that
homosexuals
can
be
a
family
relationship.
• Now
o Fewer
families
than
in
2001.
o Growth
of
Civil
Partnerships
o Growth
in
cohabitants
o Children
living
with
lone-‐parents
has
increased.
o Lowest
marriages
per
annum
since
1895.
o Kiernan-“Marriage
in
its
legal
form
has
been
abandoned
by
many,
but
not
the
lifestyle”.
Emergence
of
Liberal
Attitude
Same-sex
marriages
• Emergence
of
a
change
in
legal
attitude
towards
homosexual
people,
transsexual
people
etc.
• Fitzpatrick
v
Sterling
Housing
Association
o Fitzpatrick’s
partner
who
had
the
lease
in
his
name
died.
o The
law
at
the
time
said
you
could
inherit
property
if
you
are
a
spouse
or
“living
as
husband
and
wife”
o Held
by
the
Court
of
Appeal
that
he
did
not
apply
here
because
they
were
two
men
(not
husband
and
wife).
o House
of
Lords
held
that
although
they
were
not
living
as
husband
and
wife
but
that
they
were
considered
family
members.
• Ghaidan
v
Mendoza
o As
the
Human
Rights
Act
had
come
in
the
House
of
Lords
felt
it
would
go
against
the
ECHR
to
not
recognise
a
family
life
for
gay
people.
o They
interpreted
the
law
to
mean
living
“as
if
they
were
husband
and
wife”.
o Overruling
of
Fitzpatrick.
o Affirmed
in
European
case
of
Karner
v
Austria
o proposed
government
intervention.
• Civil
Partnership
Act
2004
, o Allow
homosexual
couples
to
form
a
civil
partnership
but
not
allowed
to
marry.
Must
not
be
in
the
prohibited
degrees
of
relationships
(below)
o Due
to
Equality
Act
2010-you
can
now
have
a
civil
partnership
on
religious
premises
but
not
a
religious
ceremony-has
not
obliged
the
religions
to
allow
this.
o Get
all
of
the
same
benefits
that
those
who
are
married
do.
o Partnership
does
not
require
consummation.
o However,
heterosexual
couples
cannot
get
a
civil
partnership.
o May
only
be
ended
by
a
court
using
powers
similar
to
those
with
divorce.
o It
is
not
same-sex
marriage
however
and
the
members
of
the
government
have
gone
on
record
saying
that
they
are
against
that.
• Saunders
v
Garrett
o Inheritance
laws
should
apply
to
same
sex
couples.
• Ladele
v
Islington
o Registrar
fired
after
not
agreeing
to
register
same
sex
marriages.
o Held
that
Article
9
(freedom
of
thought
and
religion)
rights
are
not
strong
enough
in
this
context
to
override
her
duty
in
her
job.
o The
same
was
decided
in
the
case
of
McFarlane
v
Relate
which
dealt
with
marriage
counselling.
• Schalk
and
Kopf
v
Austria
(ECHR)
o Sane
sex
couple
from
Vienna
and
were
not
allowed
to
marry
under
Austrian
Law.
o Claimed
that
this
went
against
their
right
to
respect
for
family
and
private
life
and
the
principle
of
non-‐discrimination.
Equally
if
one
partner
died,
the
other
would
be
in
a
much
less
favourable
position
under
tax
law
then
if
they
had
been
married.
o They
could
not
register
as
civil
partners
until
the
year
of
the
case
itself
.
o Held
that
Article
12
wording
on
marriage
between
men
and
women
must
be
deliberate.
o No
European
consensus
for
same-sex
marriage
and
the
court
should
not
rush
in
to
substitute
its
own
judgment
as
there
is
no
explicit
requirement
for
domestic
law
to
facilitate
such
marriages-states
have
a
wide
margin
of
appreciation
on
the
matter.
o However,
it
has
made
the
path
to
same-sex
marriage
easier
as
they
found
for
the
first
time
that
gay
people
have
the
right
to
family
life
under
Art.
8
and
also
said
that
the
wording
of
Art.
12
(right
to
marry)
did
not
necessarily
exclude
gay
marriage.
• Wilkinson
v
Kitzinger
(High
Court)
o Same
sex
couple
married
in
Canada
but
resided
in
UK
and
asked
the
Court
for
a
declaration
to
show
they
were
married
or
declaration
of
incompatibility
with
legislation
saying
that
marriage
can
only
take
place
between
a
man
and
a
woman.
, o President
of
Family
Division-Case
failed
as
there
was
no
consensus
in
Europe
and
equally
the
government
had
taken
big
steps
with
the
civil
partnerships.
o The
discrimination
was
within
the
margin
of
appreciation
accorded
to
Convention
States.
o Marriage
is
a
special
type
of
relationship-the
most
stable
for
children.
• Re
G
o Custody
issue
between
straight
and
gay
couple.
o House
of
Lords
said
that
it
rests
on
the
facts
of
an
individual
case
and
same
sex
marriages
do
not
automatically
cause
an
issue.
• JM
v
UK
(2011)
o UK
in
breach
of
Article
1,
Protocol
1
of
the
ECHR
as
it
required
non-resident
parents
to
pay
more
if
they
were
from
same-sex
marriage.
Transsexual
People
• Corbett
v
Corbett
o Corbett
married
a
transsexual
woman.
o He
ended
up
petitioning
for
a
nullity
of
the
marriage
o High
Court
(Ormrod
J)
held
that
you
are
the
sex
that
you
were
born
as
and
that
therefore
this
marriage
was
void
as
it
was
essentially
between
two
men.
o Equally
they
could
never
properly
consummate
their
marriage
due
to
true
intercourse
never
being
truly
possible.
o The
test
is
based
on
the
chromosomes,
gonads
and
genitalia
and
is
applied
at
birth.
o Transsexual
intercourse
can
never
amount
to
true
intercourse.
• Sheffield
and
Horshame
v
UK
(ECHR)
o Held
that
the
UK
were
allowed
to
refuse
a
transsexual
person
to
marry
in
their
new
gender.
o However,
the
court
issued
a
warning
telling
the
UK
that
they
had
to
keep
reviewing
the
area.
UK
ended
up
setting
up
a
Working
Group
on
the
Issue.
• Passed
regulations
to
stop
discrimination
in
the
work
place,
allowing
transsexuals
to
have
passports
with
their
new
gender
etc.
However,
they
did
not
allow
people
to
change
their
birth
certificate.
• Goodwin
(ECHR)
o Goodwin
was
diagnosed
as
a
transsexual
and
was
living
as
a
female.
She
wanted
to
keep
it
secret
from
employers
through
a
new
social
number.
o European
Court
said
that
UK
had
breached
Article
8,
received
enough
warnings
and
that
that
it
was
not
that
difficult
to
accommodate
transsexuals
and
that
the
government
should
be
expected
to
tolerate
some
inconvenience
to
allow
these
people
to
live
in
dignity.
, o Also
held
under
Article
12
that
transsexuals
should
not
be
barred
from
marrying.
o Procreation
is
not
a
necessary
correlative
for
marriage.
o No
hardship
to
public
would
flow
from
changing
the
status
of
transsexuals.
• Bellinger
v
Bellinger
o Transsexual
married
as
a
woman.
Wanted
a
court
declaration.
o House
of
Lords
rejects
the
application
under
Corbett
as
they
are
still
a
member
of
the
gender
into
which
they
were
born
(Different
approach
to
Australia)
o However,
they
did
make
a
declaration
of
incompatible
due
to
European
rulings.
• The
Gender
Recognition
Act
2004-S.
9
o Allows
a
person
upon
receiving
a
certificate
to
change
gender
for
all
legal
purposes
for
example
marrying
in
their
acquired
gender.
However,
if
you
were
already
a
parent
beforehand,
that
relationship
is
not
changed.
o Criteria
(s.
1-s.
3):
18
years
old
Living
in
other
gender
for
at
least
2
years.
Gender
dysphoria-‐two
medical
reports.
Swear
to
live
in
that
gender
until
death.
Do
not
need
to
go
under
gender
surgery.
o Success
The
most
progressive
Gender
Recognition
advancement
throughout
the
world.
o Failure
If
you
are
already
married
in
your
birth
sex
your
acquired
gender
will
not
be
fully
recognised
unless
you
divorce.
Taken
to
European
Court
but
failed
under
a
number
of
provisions
under
ECHR.
Seems
like
UK
just
cannot
allow
gay
marriage.
Held
not
to
be
a
breach
of
any
ECHR
articles
in
Parry
v
UK.
Certain
people
changing
will
lose
certain
entitlements
upon
change.
Timbrell
• Happened
before
2004
Act.
• Court
of
Appeal
said
UK
was
in
breach
of
EU
Directive
on
equal
treatment
for
men
and
women
in
social
security
as
it
refused
to
pay
a
male
to
female
transsexual
a
pension
for
her
60th
birthday.
• Now,
if
you
already
have
a
gender
recognition
certificate
before
the
period
you
are
entitled
to
the
entitlements.
Why
should
mental
disorder
be
a
pre-requisite
to
gender
recognition-‐offensive?
If
you
do
not
obtain
a
certificate
Corbett
still
applies.
• R
v
SS
for
Justice,
ex
parte
B
o Born
male,
had
gender
recognition
certificate
but
was
in
prison.
Law
Always
argue
in
conditional
and
think
about
all
aspects
Marriage,
Civil
Partnership
and
Conceptions
of
the
Family
Introduction
• History:
o Heterosexual
o “Western”
o Sexist
o Canon
law
from
Church
o Cannot
be
a
“family”
simply
because
you
act
like
one.
Platonic
man
and
women
or
two
men
can
never
be
a
family.
o Local
Government
Act
1986-‐Prevented
local
authorities
from
teacher
that
homosexuals
can
be
a
family
relationship.
• Now
o Fewer
families
than
in
2001.
o Growth
of
Civil
Partnerships
o Growth
in
cohabitants
o Children
living
with
lone-‐parents
has
increased.
o Lowest
marriages
per
annum
since
1895.
o Kiernan-“Marriage
in
its
legal
form
has
been
abandoned
by
many,
but
not
the
lifestyle”.
Emergence
of
Liberal
Attitude
Same-sex
marriages
• Emergence
of
a
change
in
legal
attitude
towards
homosexual
people,
transsexual
people
etc.
• Fitzpatrick
v
Sterling
Housing
Association
o Fitzpatrick’s
partner
who
had
the
lease
in
his
name
died.
o The
law
at
the
time
said
you
could
inherit
property
if
you
are
a
spouse
or
“living
as
husband
and
wife”
o Held
by
the
Court
of
Appeal
that
he
did
not
apply
here
because
they
were
two
men
(not
husband
and
wife).
o House
of
Lords
held
that
although
they
were
not
living
as
husband
and
wife
but
that
they
were
considered
family
members.
• Ghaidan
v
Mendoza
o As
the
Human
Rights
Act
had
come
in
the
House
of
Lords
felt
it
would
go
against
the
ECHR
to
not
recognise
a
family
life
for
gay
people.
o They
interpreted
the
law
to
mean
living
“as
if
they
were
husband
and
wife”.
o Overruling
of
Fitzpatrick.
o Affirmed
in
European
case
of
Karner
v
Austria
o proposed
government
intervention.
• Civil
Partnership
Act
2004
, o Allow
homosexual
couples
to
form
a
civil
partnership
but
not
allowed
to
marry.
Must
not
be
in
the
prohibited
degrees
of
relationships
(below)
o Due
to
Equality
Act
2010-you
can
now
have
a
civil
partnership
on
religious
premises
but
not
a
religious
ceremony-has
not
obliged
the
religions
to
allow
this.
o Get
all
of
the
same
benefits
that
those
who
are
married
do.
o Partnership
does
not
require
consummation.
o However,
heterosexual
couples
cannot
get
a
civil
partnership.
o May
only
be
ended
by
a
court
using
powers
similar
to
those
with
divorce.
o It
is
not
same-sex
marriage
however
and
the
members
of
the
government
have
gone
on
record
saying
that
they
are
against
that.
• Saunders
v
Garrett
o Inheritance
laws
should
apply
to
same
sex
couples.
• Ladele
v
Islington
o Registrar
fired
after
not
agreeing
to
register
same
sex
marriages.
o Held
that
Article
9
(freedom
of
thought
and
religion)
rights
are
not
strong
enough
in
this
context
to
override
her
duty
in
her
job.
o The
same
was
decided
in
the
case
of
McFarlane
v
Relate
which
dealt
with
marriage
counselling.
• Schalk
and
Kopf
v
Austria
(ECHR)
o Sane
sex
couple
from
Vienna
and
were
not
allowed
to
marry
under
Austrian
Law.
o Claimed
that
this
went
against
their
right
to
respect
for
family
and
private
life
and
the
principle
of
non-‐discrimination.
Equally
if
one
partner
died,
the
other
would
be
in
a
much
less
favourable
position
under
tax
law
then
if
they
had
been
married.
o They
could
not
register
as
civil
partners
until
the
year
of
the
case
itself
.
o Held
that
Article
12
wording
on
marriage
between
men
and
women
must
be
deliberate.
o No
European
consensus
for
same-sex
marriage
and
the
court
should
not
rush
in
to
substitute
its
own
judgment
as
there
is
no
explicit
requirement
for
domestic
law
to
facilitate
such
marriages-states
have
a
wide
margin
of
appreciation
on
the
matter.
o However,
it
has
made
the
path
to
same-sex
marriage
easier
as
they
found
for
the
first
time
that
gay
people
have
the
right
to
family
life
under
Art.
8
and
also
said
that
the
wording
of
Art.
12
(right
to
marry)
did
not
necessarily
exclude
gay
marriage.
• Wilkinson
v
Kitzinger
(High
Court)
o Same
sex
couple
married
in
Canada
but
resided
in
UK
and
asked
the
Court
for
a
declaration
to
show
they
were
married
or
declaration
of
incompatibility
with
legislation
saying
that
marriage
can
only
take
place
between
a
man
and
a
woman.
, o President
of
Family
Division-Case
failed
as
there
was
no
consensus
in
Europe
and
equally
the
government
had
taken
big
steps
with
the
civil
partnerships.
o The
discrimination
was
within
the
margin
of
appreciation
accorded
to
Convention
States.
o Marriage
is
a
special
type
of
relationship-the
most
stable
for
children.
• Re
G
o Custody
issue
between
straight
and
gay
couple.
o House
of
Lords
said
that
it
rests
on
the
facts
of
an
individual
case
and
same
sex
marriages
do
not
automatically
cause
an
issue.
• JM
v
UK
(2011)
o UK
in
breach
of
Article
1,
Protocol
1
of
the
ECHR
as
it
required
non-resident
parents
to
pay
more
if
they
were
from
same-sex
marriage.
Transsexual
People
• Corbett
v
Corbett
o Corbett
married
a
transsexual
woman.
o He
ended
up
petitioning
for
a
nullity
of
the
marriage
o High
Court
(Ormrod
J)
held
that
you
are
the
sex
that
you
were
born
as
and
that
therefore
this
marriage
was
void
as
it
was
essentially
between
two
men.
o Equally
they
could
never
properly
consummate
their
marriage
due
to
true
intercourse
never
being
truly
possible.
o The
test
is
based
on
the
chromosomes,
gonads
and
genitalia
and
is
applied
at
birth.
o Transsexual
intercourse
can
never
amount
to
true
intercourse.
• Sheffield
and
Horshame
v
UK
(ECHR)
o Held
that
the
UK
were
allowed
to
refuse
a
transsexual
person
to
marry
in
their
new
gender.
o However,
the
court
issued
a
warning
telling
the
UK
that
they
had
to
keep
reviewing
the
area.
UK
ended
up
setting
up
a
Working
Group
on
the
Issue.
• Passed
regulations
to
stop
discrimination
in
the
work
place,
allowing
transsexuals
to
have
passports
with
their
new
gender
etc.
However,
they
did
not
allow
people
to
change
their
birth
certificate.
• Goodwin
(ECHR)
o Goodwin
was
diagnosed
as
a
transsexual
and
was
living
as
a
female.
She
wanted
to
keep
it
secret
from
employers
through
a
new
social
number.
o European
Court
said
that
UK
had
breached
Article
8,
received
enough
warnings
and
that
that
it
was
not
that
difficult
to
accommodate
transsexuals
and
that
the
government
should
be
expected
to
tolerate
some
inconvenience
to
allow
these
people
to
live
in
dignity.
, o Also
held
under
Article
12
that
transsexuals
should
not
be
barred
from
marrying.
o Procreation
is
not
a
necessary
correlative
for
marriage.
o No
hardship
to
public
would
flow
from
changing
the
status
of
transsexuals.
• Bellinger
v
Bellinger
o Transsexual
married
as
a
woman.
Wanted
a
court
declaration.
o House
of
Lords
rejects
the
application
under
Corbett
as
they
are
still
a
member
of
the
gender
into
which
they
were
born
(Different
approach
to
Australia)
o However,
they
did
make
a
declaration
of
incompatible
due
to
European
rulings.
• The
Gender
Recognition
Act
2004-S.
9
o Allows
a
person
upon
receiving
a
certificate
to
change
gender
for
all
legal
purposes
for
example
marrying
in
their
acquired
gender.
However,
if
you
were
already
a
parent
beforehand,
that
relationship
is
not
changed.
o Criteria
(s.
1-s.
3):
18
years
old
Living
in
other
gender
for
at
least
2
years.
Gender
dysphoria-‐two
medical
reports.
Swear
to
live
in
that
gender
until
death.
Do
not
need
to
go
under
gender
surgery.
o Success
The
most
progressive
Gender
Recognition
advancement
throughout
the
world.
o Failure
If
you
are
already
married
in
your
birth
sex
your
acquired
gender
will
not
be
fully
recognised
unless
you
divorce.
Taken
to
European
Court
but
failed
under
a
number
of
provisions
under
ECHR.
Seems
like
UK
just
cannot
allow
gay
marriage.
Held
not
to
be
a
breach
of
any
ECHR
articles
in
Parry
v
UK.
Certain
people
changing
will
lose
certain
entitlements
upon
change.
Timbrell
• Happened
before
2004
Act.
• Court
of
Appeal
said
UK
was
in
breach
of
EU
Directive
on
equal
treatment
for
men
and
women
in
social
security
as
it
refused
to
pay
a
male
to
female
transsexual
a
pension
for
her
60th
birthday.
• Now,
if
you
already
have
a
gender
recognition
certificate
before
the
period
you
are
entitled
to
the
entitlements.
Why
should
mental
disorder
be
a
pre-requisite
to
gender
recognition-‐offensive?
If
you
do
not
obtain
a
certificate
Corbett
still
applies.
• R
v
SS
for
Justice,
ex
parte
B
o Born
male,
had
gender
recognition
certificate
but
was
in
prison.
