Family law: When are we married?

No comments, posted on September 24, 2012

Rebecca Probert, Professor of Law at the University of Warwick, looks at the complications surrounding marriage law.

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REUTERS/Finbarr O’Reilly

Many couples spend months planning a wedding – the venue, the dress, the flowers… Relatively few, one suspects, spend the same amount of time thinking about the legal formalities that will actually transform them into husband and wife. Instead, they rely on information from religious leaders or legal officials as to what they are required to do. But what happens if the advice is wrong and part of the process is omitted?

Background to marriage law

The law in this complex area is governed by the Marriage Act 1949, a consolidation of a whole series of nineteenth-century statutes. The phrasing of the legislation reflects an assumption that everyone would know what was required for a marriage, and a desire to ensure that individuals could not use minor loop-holes in the law to escape from their marriage. Neither in 1836, when the modern framework was established, nor in 1949, did the legislation spell out what was needed for a valid marriage. Instead, it simply set out the narrow circumstances in which a marriage would be void, stipulating that a marriage would only be void if the parties ‘knowingly and wilfully’ failed to comply with the necessary preliminaries, or married either in a place different from the one specified in the notice of marriage or in the absence of the registrar, if one was necessary (Marriage Act 1949, s. 49, dealing with non-Anglican marriages).

But today’s society is much more religiously diverse, and there is much more scope for genuine misunderstandings as to what is necessary for a valid marriage. What, then, is the position if the parties fail to comply with the necessary formalities but do not even realise that they have failed to comply? Such a marriage cannot, under the terms of the statute, be void, since they have not ‘knowingly and wilfully’ disregarded the relevant requirements. So what is the alternative?

“Non-marriage” ceremonies

The only other option is to hold that such a ceremony is a ‘non-marriage’ – which can be seen as being even lower than a void marriage. Not only does it not need a decree of nullity to establish that it never existed, but it is not even possible to grant one. The result is that the court has no power to order financial relief: in the eyes of the law, the parties to a non-marriage are no more than cohabitants.

Whether or not a particular ceremony is outside the forms specified by the Marriage Act is a question of degree, and recent cases are slowly defining the uncertain boundaries between marriages that are valid, void or non-existent. As Bodey J has noted, attempts to lay down any definition of ‘non-marriage’ may be problematic; instead:

‘Questionable ceremonies should… be addressed on a case by case basis, taking account of the various factors and features… including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.’ (Hudson v Leigh [2009] EWHC 1306 (Fam), [79]).

Should a ceremony that in no way conforms to the formalities prescribed by the law be sufficient to create a legally binding marriage simply because the parties believed this to be the case? The courts have taken the view that belief by itself is not sufficient to turn a ceremony that bears no resemblance to the required form into a valid marriage (see e.g. El Gamal v Al Maktoum [2011] EWHC B27 (Fam)). A lack of intention may, however, turn a marriage that does comply with the form into a non-marriage. This occurred in Galloway v Goldstein [2012] EWHC 60 (Fam), in which the couple had already validly married in America.

Difficult cases

More difficult are two very recent cases. The ceremony in Dukali v Lamrani [2012] EWHC 1748 (Fam) took place in the Moroccan consulate, on the assumption that English law would regard such a marriage as celebrated according to Moroccan law. The court held that it was in fact governed by English law and that since there had been no compliance with the requirements of the Marriage Act, and the place was not registered for marriage, it had to be a non-marriage. In MA v JA and the Attorney General [2012] EWHC 2219 (Fam), by contrast, a ceremony that took place in a mosque that had been registered for marriage was held to constitute a valid marriage despite the parties’ failure to comply with the civil preliminaries.

The courts have not, as yet, had to deal with the situation where the couple have complied with the civil preliminaries but then have married in a place that is not registered for marriage. Under the terms of the statute, however, the marriage is only void if they knowingly marry in a place other than that specified, so non-registration should not be a problem and the marriage would be valid.

Nor have the courts had to address the status of a marriage celebrated without the required preliminaries and outside any registered place of worship but before someone who is authorised to celebrate marriages. Such a person would, of course, not be acting in their official capacity in such a case and the mere fact that they could conduct a marriage should not be sufficient to save the ceremony from being relegated to the non-status of non-marriage.

Conclusion

While these recent cases make it possible to work out when a marriage is likely to be regarded as valid, void, or non-existent, it would of course be far preferable for the relevant legislation to be revised to clarify the position. A statute dealing with so important and personal an issue should address the problems that have arisen in the twenty-first century, rather than those that exercised nineteenth-century legislators.

Rebecca Probert is the author of Cretney and Probert’s Family Law, which has just published its 8th Edition. It is an ideal text for undergraduates studying family law and CPE students. Available from bookstores, Amazon.co.uk and the Amazon.co.uk Kindle Store.

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