Question 1: Marriage as confirmed in Hyde v Hyde is the voluntary union for life of one man and one woman to the exclusion of all others.[1] It is a contract between two people.[2] Like normal contracts, consent is an essential part of a marriage. It is presumed that both parties to the union are consenting adults. However, where both or one of the parties is 16 years of age and as such, yet to attain the age of 18, parental or other forms of consent, depending on the particular circumstances, may prove necessary.[3] This applies immediately to John and Sarah, who having just finished their GCSEs are desirous of getting married. Minimum marriageable age in England is 18 under section 3 of the Marriage Act 1949. S11 Matrimonial Causes Act 1973[4] confirms that no one under the age of 16 will be able to enter into  a marriage. Pugh case states Marriages of persons under the age of 16 shall be void in the United Kingdom.[5]^,[6],[7] It is believed, given the fact that they have both just completed their GCSEs that John and Sarah are below 18 years of age and as such in need of fulfilling the requirement of parental consent prior to their ability to enter into marriage in a civil or religious ceremony. It is also worthy of note that neither party had previously been married and as such John is not a widower and Sarah is not a widow. The law provides for a wide variety of situations with regards to the provision of consent where either or both parties are younger than 18. As confirmed by Probert, precisely whose consent is necessary depends on the particular circumstances of the child.[8] Probert further confirms that it is almost always parental consent that is required. John and Sarah will therefore need to obtain the respective consents of their parents or any other person with parental responsibility over them. Those with parental responsibility include guardians, person/s with who a child lives where a resident order is in force or the consent of the local authority where a care order is in force.[9] The Marriage Act further provides that where parental consent is withheld or where the person with parental responsibility is unable to give their consent either as a result of disability or unavailability, the court may, on an application being made, consent to the marriage and such consent will be deemed to have the same effect as parental consent.[10] In the likely event however that both or either parent refuses to give consent, an application can be made to the court for the court’s consent. Once consent is obtained, the couple must ensure that they adhere to the rules set out in s25 and s49 of the Marriage Act in relation to the publishing of banns. They also have the option of either a religious or civil marriage. It begs repetition that this advice is given on the basis that John and Sarah are between 16 and 18 years of age as under English law, no one under the age of 16 can enter into a valid marriage.[11]

Question 2:

S1 of the MCA states that divorce may be filed where parties believe that their marriage has broken down irretrievably and that the petitioner must cite one or a combination of the reasons stated in s1(2)[12], including adultery,[13] unreasonable behavior[14] and continuous separation exceeding two years,[15] living apart for a continuous period of 5 years,[16] or that the respondent has deserted[17] the petitioner for a continuous period of 2 years or more immediately before the petition was filed. One of the most cited causes of irretrievable breakdown in marriage is adultery.[18] The peculiarity of Stephanie’s case however, is that under s 1(2)(a), as the petitioner, she cannot rely on her own adultery as a ground for divorce. Adultery, in this context, has been defined in the case of MacLennan v MacLennan,[19] as the voluntary and mutual surrender of the reproductive organs and that some degree of penetration of the woman’s vagina is necessary. Although Stephanie has admitted her extramarital affair, she will regrettably be unable to rely on this, as a ground for divorce.

It would appear therefore that the one of the few options open to Stephanie is to leave her husband and to be separated from him for a continuous period of 2 years until she is able to petition for divorce on the basis of being separated for a period exceeding or amounting to 2 years under s 1(2)(d) MCA.[20] Even without the restraining provision to the effect that a petitioner may not rely on their own adultery, it would nevertheless be impossible for Stephanie to file for divorce just 6 months after her marriage. S3(1) MCA bars divorce petitions where the marriage has lasted less than one year.[21] According to Burton, the one year bar is intended to encourage the newly married who regret the step to give the marriage a chance before seeking dissolution.[22] Probert opines that whether or not this 12 month bar on divorce petition from the celebration of the marriage fulfils the intended purpose is open to debate. This is owing to the fact that regardless of the duration of their union, couples who feel they are so incompatible or that their relationship has degenerated considerably in less than a year of marriage have what can best be referred to alternative ‘get out’ clauses. It follows therefore that although Stephanie may be deterred from filing for divorce on account of the tenure of her marriage, there may be other options available. In the case of Butler v Butler,[23] for instance, a petition was submitted in the first year of the marriage for judicial separation, a temporary remedy wherein spouses remain legally separated. The MCA provides that judicial separation and can be obtained within the first year of a marriage.[24] S17(2)(3) particularly provide that the court may grant the judicial separation petition on the same grounds as in a petition for divorce. Unlike a divorce petition however, it is not necessary under judicial separation to prove irretrievable breakdown of relationship.[25] However, remarriage under a judicial separation decree is impossible..This is owing to the fact that under section 1 of the Family Law Act 1996, Stephanie’s marriage remains in force for the duration of the separation order or until such time as she and her husband make a joint application for the order to be cancelled.[26] Stephanie may also request that her husband enters into a separation agreement with her. Under this agreement, the parties are free to separate and deal formally with matters without recourse to the court of law. Perhaps a separation might serve the dual purpose of encouraging Stephanie to reconcile with her husband instead of filing for divorce on the expiration of the one year bar.

Should Stephanie wish to proceed with the divorce following separation however, although she is fearful that her husband may not consent to divorce, it should be noted that one party’s desire to stay married despite the petitioner claiming irretrievable breakdown of the relationship and irreconcilable differences does not necessarily bar divorce.[27] It follows therefore that given the 2 major obstacles Stephanie is very likely to face in petitioning for divorce; the one year ban and the requirement that the philandering party be the respondent, the most probable option available to her is to separate from her husband according to s 1(2)(d) MCA for a continuous period of 2 years, after which she may file for divorce. This separation may take the form of either spouse moving out of the family home or living distinctively separate lives under the same roof as was the case in Mouncer v Mouncer.[28] The other option is judicial separation, which as confirmed earlier is a temporary divorce measure.

Question 3:

Knox and Schacht confirm that getting divorced affects ones finances and that both men and women experience a drop in income following divorce.[29] The basis of Peter’s enquiry; what or how much does he stands to lose in the event of a divorce from his wife of 15 years ? Recent cases evidence that whereas the courts are happy to judiciously distribute the wealth and property acquired during a dissolved marriage; they are more reluctant when it comes to the pre-marital wealth of either party. Of utmost relevance to Peter’s situation is the case of N v F,[30] where the court took the husband’s premarital wealth into due consideration in dividing the assets of the marriage.. In yet another recent case Jones v Kernott [31], the court departed from the equal distribution principle based on spousal contribution and fairness. This was also the case in the ground breaking and largely controversial case of Jones v Kernott, where it was decided on appeal, that Mr. Kernott was entitled to no more than 10% of the proceeds of sale from the couple’s home. Jone’s case is however particularly important to Peter’s situation as the premarital property was also in contest. In awarding ancillary relief following Peter’s divorce therefore, it is certain that the £2 million he had prior to the wedding will be taken into due consideration and a decision in that regard at the very least, recorded in Peter’s favour. However, the fact remains that Peter has been married for 15 long years and that marital funds and assets would by now have been mingled with premarital wealth. As Mr. Justice Mostyn decided in the case of N v F, it can be argued that there was an acceptance by Peter to share his growing wealth with his wife upon divorce. A financial claim may therefore be brought by the wife for her upkeep and maintenance following divorce in such a manner that she does not suffer undue hardship as a consequence of the divorce. If, as a result of her 15 years of marriage to Peter, she has or had at any point in time suffered income loss[32], this will also be taken into consideration and may form part of her financial claim. Under the s(23) and s(24) of MCA, ancillary relief orders include financial provision orders,[33] and property adjustment orders.[34] Peter’s wife can make financial  settlement under the provisions of s23 and s24 of MCA  and it is for the court to determine which orders are appropriate to peter’s wife. The main orders that can be made by the court are periodical payments of an income nature. These payments can be weekly, monthly or annual. Transfer of property is another order where one party for example transfers a share in the matrimonial home to the other, including lump sum payments and pension sharing orders.[35] Similarly, a wide variety of factors will also be taken into consideration when granting awards, as provided by s 25 MCA. These include the age of each spouse, the duration of the marriage[36], contributions made and/or likely to be made by either party to the family’s welfare,[37] the income, earning capacity, property and other financial resources of both parties,[38] the financial needs, obligations and responsibilities of the parties [39],  standard of living that was enjoyed by the Perter and his wife prior to the marriage breaking down.[40] Given Peter’s affluence court may adopt the Duxbury calculation, in awarding ancillary relief. This amortises the income a spouse can receive from the other throughout their life time. It is quite often applied in cases where the spouses are considered wealthy. It is usually adopted where the couple is desirous of a clean break.[41] Peter may therefore not have to make periodical payments to his wife if it is decided and agreed that the settlement for her maintenance should be made in a lump sum. Going by decided cases, and in particular the case of N v F, it is very likely that Peter’s assets which he accrued in the course of the 15 years of his marriage will be shared equally with his wife based on the duration of the marriage and the sharing principle while the £2 million pre marital asset may be left intact for Peter or a part thereof apportioned to his wife depending on how the court perceives her needs It is however highly unlikely that the £2 million pre-marital asset will be shared equally. This would be following the decision in the case of Jones v Jones,[42]  where it was decided that it would be an error of judgment not to exclude the husband’s premarital wealth from the equal sharing principle. Excluding £1 million from the pre martial asset, the Judge divided the remainder equally; confirming as he awarded the amount that had the impact of the wife’s needs not been as significant, he might have excluded more, if not the entirety of the pre-marital wealth.   .

The contribution of both parties[43] to the marital assets, the duration of the marriage[44] and mingled assets were considered in both cases. Finally, the fairness of the award should be tested by the overall percentage test or the sharing principle as advocated in Charman v Charman,[45] as follows that when the result suggested by the needs[46] principle is an award of property less than the result suggested by the sharing principle, the latter should in principle prevail.[47]

Having  successfully turned a premarital wealth of £2 million into its current value of £10 million in their 15 years of marriage, it can be argued that there is, as Wilson LJ found in K v L, a substantive difference in contribution with Peter as the sole or at least majority contributor. Peter’s wife may therefore have very little or no share of the premarital acquest. Be that as it may, MCA 1973 s25(2)(g) provides that conduct may also be taken into consideration in the award of ancillary relief. If Peter’s wife has either during the course of their marriage or since its dissolution, conducted herself in a manner that is reproachable, this will reflect on the percentage awarded in ancillary relief once a financial claim is submitted by the wife. Loss of earnings[48] is also another factor the court will take into consideration. Did Peter’s wife, as a result of their marriage, have to stop work or seek alternative employment either of which significantly reduced her income? Similar questions arose in the case of Miller v Miller; McFarlane v McFarlane[49] where £250,000 per annum based on the fact that she gave up her equally lucrative career to be a home maker at the parties’ joint agreement.[50] Quantifying the right amount to be awarded is the court’s decision and matters would be significantly different had Peter and his wife signed a pre-nuptial agreement to the effect that neither party would take away from the marriage in the event of a divorce, any asset which they neither brought nor contributed to acquiring. The importance of pre-nuptial agreements has been brought home in some recent decisions where it was held that a pre nuptial agreement must be given due weight in the award of ancillary relief and appropriation of marital goods. Another point of argument may be the protection offered by Article 1 of the First Protocol of the ECHR and Human Rights Act 1998[51] to the effect that every person, legal or natural, has the right to peaceful enjoyment of his/her possessions.  It may therefore be argued that Peter should be able to enjoy his possessions in peace. This argument may however be effectively nullified by the principle of communal property in marriage

Question 4(a):

According to Harris-Short and Miles, same sex couples like Samantha and Jane are increasingly gaining social acceptance and can now register a civil partnership to acquire rights and responsibilities previously only available to spouses.[52] As cohabitants, Samantha and Jane are at significant disadvantage; not least of all on account of their lack of status under Civil Partnership Act but also because of the rather conflicting view of the law in relation to cohabitants.[53] As same sex cohabitants, Jane and Samantha will be regarded by law and under the provisions of Family Law Act 1996 to be associated persons.[54] Whereas s62(1)(a) of FLA[55] defines cohabitants as two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners, s62(3)[56] defines associated persons as including those who have been married to each other, cohabitants or former cohabitants, living or having lived in the same household otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder; and relatives.  For the purpose of the law therefore, Jane and Samantha are cohabitants. Part IV[57] of the FLA 1996 provides that an abused party or victim of domestic violence in cohabitation may file for a non-molestation order. In G v F [58], non-molestation order was denied as the couple were found to have largely lived in separate households and as such did not meet the ‘associated persons’ requirement, S42(1)(a) FLA[59] defines a non-molestation order as the prohibition of a person “the respondent’ from molesting another person who is associated with the respondent. S42(5)(a) of FLA[60] confirms that the court will take Jane’s, health, safety and well-being into consideration in deciding whether or not to exercise its powers in granting the non-molestation order.[61] S6 and S7 of  FLA[62] further provide as follows that a non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both; a non-molestation order may be made for a specified period or until further order. Under the provisions of the Family Law Act 1996 therefore, Jane’s best option will be to file for a non-molestation order to protect her as an associated person and a cohabitant from Samantha’s alleged violence. Jane may file for the non-molestation order for a specific period of time to afford her the opportunity of finding a lasting solution to the problem or the order may be decided at a later stage according to s42(7) of FLA.[63]  Jane can also protect herself by virtue of article 3 of Human Rights Act 1998 which requires the state to protect citizens from torture of degrading treatment from other people.[64]

Question 4(b):

Where, as has been alleged in Jane and Samantha’s relationship, violence or domestic abuse is confirmed,  regardless of the fact that it is a same sex relationship, upon application by the aggrieved party for an occupation order, the respondent (the abusive partner) may be excluded from the shared ‘family’ home. Section 33(1)(b)(ii) of FLA[65] refers to the ‘family home’ as a dwelling house and qualifies that an application for occupation order can be brought where the dwelling house was at any time intended by the person entitled and any such other person to be their home. It would appear that Samantha and Jane had indeed intended for the rented accommodation to be their home once they decided to move in together. Under s36(1)(b) of FLA[66] Jane can be described as the cohabitant not entitled by virtue of a beneficial estate or interest or contract,[67] section 36(2) of FLA[68] however entitles her to apply to the court for an order against Samantha. Furthermore, as a cohabitant in occupation, Jane  may not only file for an application for Samantha, not to be able to evict her, but under s36(5), she may also file for the regulation of their continued cohabitation in the dwelling house and ultimately, for Samantha to be prohibited, suspended and restricted from the dwelling house or altogether evicted for a specified period until Jane secures alternative accommodation within reasonable time. Although it would have been impossible for Jane to rely on the s36 FLA[69] previously, times have changed significantly and Part 4 of the FLA has included same sex couples in the definition of cohabitation. This was an issue in the case of Fitzpatrick v Sterling,[70] where the House of Lords interpreted the provisions of the Rent Act 1977 to mean that they were family members. Later in the landmark case of Mendoza v Ghaidan,[71] the court took the decision in Fitzpatrick a significant step further when it held that for the sake of the tenancy, the same sex couple were living together as husband and wife under the provisions of the Rent Act 1977. The House of Lords relied on the Human Rights Act 1998 to interpret the requirement of a family relationship as meaning as if he or she were his wife or husband.[72]  It follows therefore that Jane and Samantha can be seen by the law as family members and for the sake of the argument at hand, Samantha will be able to file an application for occupation order. Although she must bear in mind the fact that the court awards this order as a measure of  last  resort  as was advocated  in Re Y [73]. Jane  may need to convince the court of serious physical violence if her application is to be successful, otherwise, the principle applied in G v G  may become applicable which is where an occupation order would be made after unintentional conduct.

Nevertheless, Lipshitz et al confirm that regardless of the nature of the relationship; opposite or same sex, family law operates a general protective jurisdiction of the vulnerable.[74] Lipshitz et al further confirm that although this protective jurisdiction is most evident where there are children involved, it nevertheless applies to adults as well and that in consequence, English law makes provision for one party to be ousted from the property, temporarily or otherwise.[75] It is also worthy of note that under the Domestic Violence Act 2004, same sex partners have been awarded the same rights as opposite sex couples in so far as occupation orders are concerned.[76] The fact that Samantha is the sole tenant on the lease does not also reflect favourably on an application to have her removed from the dwelling house under an occupation order with Jane as an associated or entitled person. The court will nevertheless consider the basic rules including the couple’s individual circumstances, housing options, involvement or otherwise of children and Samantha and Jane’s conduct to each other. The latter criterion is so as to avoid belabouring the point as was believed to have been the case in Richards v Richards.[77]  The brevity of Jane’s stay with Samantha cannot be glossed over and the fact that her name is not on the tenancy agreement may be read to mean that she (Jane) lacks legal entitlement to the dwelling house,[78] or beneficial interest in the rented property. Discretionary powers may however nevertheless be applied by the court in considering the temporary occupation order.

Question 5 (a):

The law in England is that a marriage is void from inception if it is not between a male and a female.[79] Although this law has since been repealed and amended by subsequent legislations, same sex marriage is nonetheless yet to be legal in the UK. As such, John and Terry will regrettably be unable to get married to each other as they wish. This has generated heated debate as to the perceived inequality in denying gays and lesbians the right to be legally married. In the case of Wilkinson v Kitzinger,[80] the same sex couple had been legally married abroad but their marriage was not recognised in the UK upon their return from Canada as s.215 of the Civil Partnership Act 2004 provides that same-sex marriages entered into abroad shall be regarded as a civil partnership and not a marriage. They filed a complaint about what they perceived as discrimination and a contravention of Articles 8 and 12 of the European Convention on Human Rights Act. It was decided that creating an alternative in the form of Civil Partnership was indeed discriminatory. While John and Terry may not be able to enter into a marriage to each other, the good news is that there is an alternative available to them through which they may formalise and register their partnership.

Question 5 (b):

The main difference between a civil partnership and a marriage, simply put, is that whereas the former is for same sex couples, the latter remains only available to opposite sex couples wishing to formalise and legalise their relationships. Although Probert confirms that the Civil Partnership Act entitles same sex couples in England and Wales to virtually all of the same responsibilities, rights and benefits as married couples, the different terminology nevertheless presents confusion.[81] There are however some major differences between the two. While s1 of the MCA lists adultery as one of the grounds for divorce in a marriage, this is not the case in civil partnership.[82] Still on the issue of intercourse, in a marriage, where a woman seeks unconventional methods for conception with her husband’s consent, her husband may hold parental responsibility over the child fathered from such assisted reproduction and even be regarded as the father. This recognition does not yet extend to same sex unions.[83] Fundamental differences or their non-existence aside, there are a number of other differences which one might argue are more cosmetic than substantial but nevertheless distinguish civil partnership from marriage. For instance, parties in a civil partnership do not exchange vows but sign register in lieu.[84] In relation to grounds for divorce, whereas non-consummation and communicable venereal diseases may be cited in a marriage, this is not applicable in civil partnership. Another difference which may not be so superficial is the fact that whereas a marriage has religious connotations and are generally conducted in Church, a civil partnership can only be conducted by registrars.[85]Finally as evidenced in Wilkinson’s case, whereas marriages legally conducted aboard are recognised within the UK, this is not the case with civil partnership ceremonies.[86]

Question 6:

The law is very particular about the care of children whether or not they are born out of wedlock. Responsibilities to a child and in particular, maintenance cannot be left without adequate provision in any civilised society. The Children Act 1989 is the appropriate and relevant legislation in the United Kingdom for the financial maintenance of children of both unmarried and married couples. Schedule 1 para 1(1) of the Children Act  provides that the parent, guardian or special guardian of a child or anyone in whose favour a residence order in relation to the child is in force, may submit an application for financial relief. As Lizzy’s mother, Emma therefore has every right to file this application. Given the nature of the relationship, or lack thereof, between David and Emma, David is not automatically presumed to have parental responsibility whereas as the mother, Emma has full parental responsibility for their daughter.[87] However, having been confirmed as the father, lack of parental responsibility does not exonerate David from his duties in financially maintaining his daughter. Under the Family Law Act and more specifically the Maintenance of Spouses and Children as well as the Children Act, David is liable for maintenance and financial support for his daughter. Part II section 15 of the Children’s Act may come into application in this case as David may be considered well off enough for the court to award lump sum order under Schedule 1 para 5(1) of  Children’s Act or property transfer order under section Lizzy’s benefit.[88] As the non-resident parent and with his wages comfortably above average, David’s financial responsibility to his daughter, despite the lack of relationship between him and the mother, is bound to be considerable. This was established in the case of Re P (Child: Financial Provision)[89], where the mother was awarded allowance from much wealthier non resident father in her capacity as the child carer. Therefore in the given circumstance court may award allowance to Emma as she is the child carer of Lizzy. Taking  parent’s earning capacity, income, property and other financial resources into consideration under Schedule 1, para 4(1) of Children’s Act. Therefore, the court will order David to pay for Lizzy and Emma will be able to pay herself for Lizzy’s care from said money. Or even more importance to this matter is the provision of  Schedule 1, para 4(1) which states that the  Lizzy’s needs and other factors such as income, property and other financial resources will also be factored into the Lizzy’s upkeep, court also has to consider any physical or mental disability of Lizzy if there is any and also the manner in which Lizzy will be expected to be educated or trained.[90] Similarly, should it be decided that one of David’s properties be awarded to Lizzy, such property would be transferred to Emma to hold for Lizzy until she is 18, at which point title may revert to David.[91] The determination will however first and foremost have to be made with regards to the extent of David’s liability both to his daughter and to Emma.

Herring confirms that in most cases, the needs of the child and his or her primary carer take prominence and because they are not very often adequately met on account of financial constrain, controversies around financial orders do not very often arise.[92] However, where the couples; married or otherwise, seeking or opposing the award of ancillary relief or child maintenance order are significantly wealthy, a few other factors will come into play. As confirmed by Herring, the most important of these factors will be the needs of the child and his or her carer. This was exhibited in the case of B v B [93], there are a number of contributory and maintenance orders which will apply to David by virtue of Lizzy’s paternity. These include a periodic contributory order for child maintenance on a monthly, weekly or fortnightly basis.[94] It begs repetition that it fails to matter what the nature of the relationship or indeed mere acquaintance between David and Emma are, the court’s decisions in the award of the applicable orders will be based solely on the child’s needs and in her best interests.