The existentialist crisis of civil partnership: when non-existence does not exist

This paper explores the English common law doctrine of non-marriage as laid down in Hudson v Leigh, Gandhi v Patel, A-M v A-M, and Gandhi v Patel. No such comparable doctrine currently exists for Civil Partnership. This paper considers whether a doctrine of non-existence could be applicable to cases involving attempted gay marriage or civil partnership. The degrees of nothingness attributed to incorrectly formed, same sex partnerships will be compared across several common law jurisdictions including Ireland, South Africa and British Columbia. It will be argued that the doctrine of non-marriage is based not so much on a legal understanding of marriage as outlined by statute and case law but on a dated understanding of marriage as a Christian institution. As such the doctrine of non-marriage exemplifies the complicated understanding of the nature of marriage in English law which is contrasted with the clinical understanding of civil partnership demonstrated by section 1 of the Civil Partnership Act 2004. It will be argued that perhaps the current Government's plans to introduce gay marriage may lead not only to equality but also to a reconsideration of the nature of marriage itself as understood by the law.