European Family Law Forms of Relationships: Marriage Monday, 19^th November 2007 Dr. Ian Curry-Sumner, Universiteit Utrecht Introduction What is marriage? No universal definition: n Monogamous? E.g. India n Opposite-sex? E.g. The Netherlands n Lifelong? E.g. England and Wales n Reproductive? E.g. USA n Religious? E.g. Belgium Contract v. Status Contract w Why is marriage similar to a contract? l Agreement between two people l Imposes mutual obligations and rights on the parties concerned l Similar problems: capacity, form etc w Why is marriage unlike a contract? l Capacity unlike any other form of contract l Valid only if special formalities observed l Grounds on which void/voidable completely different to most contracts l Marriage cannot be discharged by agreement, frustration or breach. Contract v. Status Status w What makes marriage like a status? n “Condition to belonging to a particular class of persons to whom the law assigns certain peculiar legal capacities or incapacities” n Terms to the marriage contract are fixed by law and not open to agreement n Also affects the rights and duties of third parties and therefore requirements are often very different. w What makes marriage unlike a status? n Contractual nature of the form and capacity Substantive Law Conditions Number of formal conditions imposed on future spouses: n Age n Sex n Monogamy n Residence n Prohibited Degrees England and Wales Age At common law, could be contracted if parties reached the age of puberty: n 14 for men and 12 for girls After Marriage Act 1929 passed (now in s.2 Marriage Act 1949)‏ n 16 for both parties n Marriages void if either party under this age However, if between 16-18 still need to ask for parental consent to marry. England and Wales Sex w Transsexuals n Need to be of opposite sex: s.11(c) Matrimonial Causes Act 1973 n Corbett v. Corbett (1971): chromosomal, gonadal and genital tests. Creates problems when people are male by one and female by another. n ECtHR: Rees v. UK (1986), Cossey v. UK (1991), Sheffield & Horsham v. UK, Goodwin v. UK w Homosexuals / same-sex § Difference needs to be made between homosexual and same-sex! § Not currently allowed. England and Wales Monogamy (exclusivity)‏ Two facets as decided in Hyde v. Hyde n Only consecrated between two people n Only involved in one marriage at any one time Residency w In England a distinction is made between Church of England weddings and civil ceremonies (other religious ceremonies). n Church of England: 3 consecutive Sundays need to read banns n Civil Ceremonies: 7 days residency + 15 days notice period England and Wales Prohibited Degrees of Marriage Consanguinity (relationships by blood) n On moral grounds; often seen as abhorrent n Set out in Part 1, Schedule to Marriage Act 1949 n Not all of these relationships are however criminal! Affinity (relationships by marriage) n Theological concept because husband and wife were one n Now more to do with the fact that will create tension (state interference?)‏ n More complicated restrictions – not absolute (what does this mean?)‏ Adoption The Netherlands Age w Prior to 1984, age for men was 18 and for women 16. w After 1984, this equalised at 18 (Article 31(1), Book 1). w However a couple of exceptions: n If both parties are 16 and she is pregnant or just given birth, then can also marry: Art. 31(2)‏ n Minister of Justice may also remove the obligation: Art. 31(3). l Examples: a necessary trip abroad where unmarried cohabitation is not accepted (DC, Amsterdam, 7^th March 1995)‏ l Appeal is possible to the district court if consent refused. The Netherlands Sex and Same-Sex Marriage w Supreme Court, 19 October 1990: Case decided that not discriminatory to refuse marriage to couples of same-sex, but it was discriminatory to deny the benefits of marriage to couples of the same-sex. w On the 25^th June 1996, Kortmann Commission II established to analyse the question. w In October 1997, the Kortmann Commission Report II was published. w The majority (5/8) of the members thought it best to open marriage to couples of the same-sex and then remove RP. The Netherlands Majority Standpoint w The grievance that same-sex couples excluded from marriage not solved by introducing RP. w Same-sex and opposite couples are the same (apart from in parentage cases)‏ w Commission noted that marriage has been a flexible institute and has followed social change (equalisation of men and women for example)‏ w Civil marriage is not a sacred institute but a legal institution recognised by the law. w No parentage consequences – because would lead to too great a split with reality. The Netherlands Minority Standpoint w They saw no discrimination if not opened because they are not the same. w They were concerned that the core element of reproduction would be lost. w They saw the introduction of same-sex marriage as introducing a second marriage w Also considered that would lead to problems at international level The Netherlands Monogamy n Article 30, Book 1: Only between two people n Article 33, Book 1: Only one marriage at any one time Residency n If both not Dutch and neither live in NL – cannot marry in NL n If both not Dutch, and one lives in NL – may marry in NL n If both one Dutch – may marry in NL n Requirements contained in the Aliens Act 2000 (Vreemdelingewet 2000)‏ Transsexual Marriages ECHR: Rees (1986); Cossey (1990)‏ w Facts: Rees (F-M TS), and Cossey (M-F TS). After treatment changed name and lived as male. Refused to change birth certificate w Court: No violation of Arts 8 or 12. Wide margin of appreciation and fair balance must be struck between interests of individual and community. Art. 12 is a guarantee to opposite biological sex. w Note Commission voted 10-6 in favour of violation of Art 12! However Court said no difference with Rees Transsexual Marriages ECHR: B v. France (1992); Sheffield and Horsham (1997)‏ w B v. France: Admitted that violation because onerous on the parties to provide for personal identification on regular basis. Differs from UK decision. Thus taking into account local situation. w Sheffield & Horsham: No sufficient new findings since Rees and Cossey. Explicit reference made to B v. France, in terms of distinguishing the facts. w X, Y and Z: No difference Transsexual Marriages ECHR: Goodwin v. UK (2001)‏ w Facts: Post-operative M-F TS. Problems concerning payment of National Insurance contributions. Different age for men and women to contribute (65 v. 60). Complained of treatment in terms of employment, marriage etc. w Court: Although ECtHR could not find conclusive reasons for the cause of transsexuality, it was clear that many countries allowed for operations. Increased trend of recognition of post-operative sex. Reliance on Bellinger. Ball passed to Parliament. Move away from Corbett.