Same Sex Marriage: The New Law

Same Sex Marriage: The New Law

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Overview

This New Law Guide examines the legal changes introduced by the Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013, and the rights and responsibilities that are afforded to those who register under the scheme, as well as examining the law as it relates to cohabitants, so that the legislation can be seen in context. The CPA 2004 makes provision for Scotland and Northern Ireland but this work confines its analysis to the implications for the law of England and Wales of the CPA 2004 and the MSSCA 2013. It includes an analysis of some of the parliamentary debates, many of which will be relevant in future arguments about the meaning of the statute, in accordance with the rule in Pepper (Inspector of Taxes) v Hart. In addition, there is consideration of some wider material for the purpose of evaluating compatibility of the legislation with Convention rights, including the value judgments inherent in the test of proportionality as suggested in Wilson v First County Trust Ltd. Appendices contain the full text of the MSSCA 2013 and relevant extracts from the CPA 2004. SAME SEX MARRIAGE & CIVIL PARTNERSHIPS - THE NEW LAW provides an authoritative commentary, highlighting areas of potential difficulty and offering practical guidance, and will be essential reading for all family lawyers, housing lawyers and also chancery practitioners dealing with inheritance claims.

Product Details

ISBN-13: 9781846618598
Publisher: Jordan Publishing, Limited
Publication date: 05/10/2014
Edition description: New edition
Pages: 608
Product dimensions: 6.14(w) x 9.69(h) x 1.30(d)

About the Author

Partner, Withers LLP, London,Barrister, No 5 ChambersBarrister, 1 Crown Office Row, Temple, LondonPartner, Withers LLP, London,Barrister, Tanfield Chambers, London

Table of Contents

Dedication v

Preface vii

List of Abbreviations ix

Table of Cases xvii

Table of Statutes xxv

Table of Statutory Instruments xxxv

Chapter 1 Introduction 1

The scope of the book 7

Chapter 2 The Context: LGBT Law Reform 9

Introduction 9

Stonewall European litigation strategy 13

Domestic case law 17

Succession rights 19

The Treaty of Amsterdam 21

Reform by Parliament from 2002 23

Hate crime 27

Human Fertilisation and Embryology Act 2008 27

Chapter 3 The Genesis and Scope of the Civil Partnership Act 2004 29

Introduction 29

Family law reform 29

International context 32

Denmark 32

Common law countries 33

United States 34

United Kingdom 35

Opting in or opting out 36

Civil partnership consultation 39

The passage of the Bill 41

Outline of the Civil Partnership Act 2004 44

Commencement of CPA 2004 and subsequent developments 46

British Islands and Colonies 49

Projected and actual take-up of civil partnership and same sex marriage 49

The future of civil partnerships 51

Chapter 4 The Genesis and Scope of the Marriage (Same Sex Couples) Act 2013 55

The legal effect of the Act 55

The historical development of marriage 58

The genesis of same sex marriage 63

Scotland 70

Northern Ireland 72

Republic of Ireland 72

The effect on marriage 73

Commencement 78

Chapter 5 Registration, Conversion of Civil Partnerships, Divorce and Dissolution and International Issues 81

Introduction 81

Registration 82

Formation 82

Eligibility 83

Procedure 84

Civil marriage 85

Offences 87

Refusal to conduct a same sex marriage 88

Marriage overseas 88

Gender reassignment 89

Civil partnerships 90

Conversion of a civil partnership into a marriage 90

The future of civil partnerships 91

Dissolution 92

Generally 92

Jurisdiction 94

Other matters 95

Private legal instruments 95

Presumption of parentage 95

Comparison of civil partnership and marriage for same sex couples 95

International issues 100

Recognition of same sex marriage and civil partnerships within the UK 100

Recognition and validity of foreign same sex marriages, and validity of same sex marriages between foreign domiciles 101

Recognition of UK civil partnership abroad 105

Recognition of same sex marriages and civil partnership abroad 106

Recognition of UK civil partnerships 106

Registration of partnerships formed overseas 107

Recognition in the UK of foreign civil and registered partnerships 109

Termination of same sex marriages and civil partnerships 111

Jurisdiction for divorce - opposite and same sex marriages 111

Jurisdiction for termination/dissolution of civil partnerships including termination of civil partnerships registered overseas 112

Sham marriages 113

Chapter 6 Religious Ceremonies 115

Prevalence of religious marriage 115

Religious celebration of civil partnership 118

Religious solemnization of same sex marriage 120

Church of England and Church in Wales 121

Registered places of worship 126

Quakers and Jews 130

Housebound and detained persons 131

Deathbed marriages 132

Armed forces 133

Religious services upon civil registration 134

Opting out 135

Opting-in and validity of marriage 137

Chapter 7 Financial Consequences of Termination 139

Introduction 139

Possible differences between opposite sex and same sex marriages and civil partnerships 139

Lawrence v Gallagher 140

Financial claims on same sex marriage divorce 141

Financial claims in England and Wales after a foreign same sex marriage divorce 141

Financial claims on civil partnership dissolution 142

Property and financial arrangements 142

Actions in tort between partners 143

Civil partnership agreements 143

Financial consequences of dissolution, nullity or separation 144

Matters to be taken into consideration when making a financial order 147

Maintenance pending the outcome of proceedings 150

Applications for failure to maintain 150

Commencement and duration of proceedings and orders 151

Applications to vary or discharge orders 152

Arrears and repayments 153

Consent orders and maintenance agreements 154

Transactions intended to frustrate a claim for financial relief 155

Other provisions 156

Financial relief in magistrates' courts 156

Financial relief in England and Wales after the termination of a civil partnership overseas 158

Financial provision for children 161

Chapter 8 Parents and Children 163

Introduction 163

Parents 164

The mother 155

The father or other parent 165

Step-parents 169

Parental responsibility 170

Sole and shared residence orders 173

Resolving disputes as to the care of a child of a same sex couple 175

Genetic, social and psychological parenting 176

Expert evidence 178

Adoption 180

The Adoption and Children Act 2002 181

Relatives and family 185

The Children Act 1989 186

Child abduction 187

Brussels II and recognition of same sex parenting orders 187

Chapter 9 Immigration and Asylum 189

Introduction 189

The dual domicile rule and capacity to marry for a bi-national or non-UK domiciled couple 190

Entry clearance or leave to remain? 191

Primary legislation 192

Civil Partnership Act 2004 192

Certificates of approval and sham marriages 192

Marriage (Same Sex) Couples Act 2013 193

Immigration Rules 194

Evidential and procedural requirements and hurdles 194

Non-EEA and Swiss nationals 195

Pre-9 July 2012 clients 196

Post 9 July 2012 applications 199

Appendix FM - entry clearance (applications from abroad) 201

Appendix FM - in-country applications 204

Bereaved partners 206

Domestic violence 206

EEA nationals 207

Human rights 209

Article 8 under the Immigration Rules 209

a Private life rights 210

b Family life 211

Leave granted pursuant to Article 8 ECHR 218

Exceptional cases 218

Compassionate factors: leave outside the Rules 219

Free standing Article 8 case law 220

Flagrant breach of human rights 224

Immigration Bill 2013 and Article 8 225

Asylum 226

Rights of appeal 230

Immigration Bill 2013 and sham marriage and civil partnerships 231

Chapter 10 Rights and Responsibilities 233

Introduction 233

Human Rights 233

Article 8 Right to respect for private and family life 233

i Private life 234

ii Family life 235

Article 9 Freedom of thought, conscience and religion 235

Article 10 Freedom of expression 237

Article 12 The right to marry and found a family 238

Article 14 Prohibition of discrimination 240

The Equality Act 2010 241

Employment 246

Pensions 250

Freedom of expression 251

Education 253

The family home 255

Home rights 255

Injunctions 256

Tenancies 257

Property and finance 258

Insolvency 258

Social security and tax credits 259

State pension 260

Taxation 260

Compellability 262

Chapter 11 Incapacity and Death 265

Mental incapacity 265

Registration of death, inquests and burial 267

Wills 268

Administration of estates and intestacy 270

Inheritance Act claims 271

Life insurance 271

Fatal accidents 272

State pensions 273

Occupational pensions 274

Tenancy succession 275

Regulated occupations 276

Legal proceedings 277

Appendix Statutory Materials 279

Civil Partnership Act 2004 (as amended) 279

Marriage (Same Sex Couples) Act 2013 507

Index 563

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