If a marriage is declared void or invalid: what next?

Divorce|Family Law|Stowe Family Law|July 9th 2008

It isn’t as difficult as you might think to go through a ceremony that looks like a marriage, but isn’t.

When a couple’s marriage is not valid according to English law because the ceremony does not legally marry them – even if, to all intents and purposes, they appear to be married – is it still possible for one spouse to obtain a financial settlement against the other? The answer is, yes, if the Petitioner spouse, thought he or she had actually gone through a lawful marriage ceremony and acted as married thereafter.

Famously, Jerry Hall “married” Mick Jagger on a beach in Bali. When they dissolved their relationship nearly nine years later, she argued that they had been married in a marriage ceremony, and that she believed she was legally married. Mick Jagger refuted her claims, arguing that they had never been married – and that both of them knew it. Their ceremony was invalid because under Balinese law, only Muslim marriages can be validly conducted.

They reached an agreement to accept that their ceremony was not valid under English law. The “marriage” was declared null and void. But, as part of the agreement, Jerry Hall obtained a settlement thought to be in the region of £12.5 million.

When meeting with a new client, I always ask where the parties were married and check that they are legally married. I recall one overseas client who sat patiently through our first session. All seemed in order but at the close of the meeting she asked me, in broken English, if it mattered that when she married her husband in England, she was already married to another man in the Far East! It turned out that she had never divorced him.

Bigamy, which is what that client had committed, is a criminal offence. Both she and her second husband were aware of the first husband’s existence, and her legal status as a married woman. Her second “marriage” was void. Neither she nor her second “husband” could argue they believed the marriage ceremony to have legally married them.

On the other hand, it isn’t as difficult as you might think to go through a ceremony that looks like a marriage, but isn’t. In parts of Europe, for example, a religious ceremony on its own does not create a legally binding marriage. There has to be a civil ceremony too. This is the case in France and Italy. In England, this rule is applied to Greek Orthodox wedding ceremonies and certain Muslim wedding ceremonies. The religious ceremonies must be accompanied by civil ceremonies.

One case of mine involved parties who had had a religious ceremony in Italy, but no civil ceremony. The husband was aware that this “marriage” was not valid. The wife remained in a state of blissful ignorance until the couple’s relationship broke down.

I represented the wife. She was able to petition the Court for a Decree of Nullity under s11(a)(iii) and s14 of the Matrimonial Causes Act 1973. This process acknowledges the invalidity of the “marriage”. However, a Decree of Nullity allows a Petitioner to obtain the financial remedies to which the Petitioner would have been entitled if the marriage had been valid in the first place.

Another case, Burns v Burns, was considered in 2007 by Mr Justice Coleridge (and recently reported at 2008 1 FLR 813).

Mr and Mrs Burns had opted for an unusual marriage ceremony. It took place in a hot air balloon in California. Their marriage licence was obtained after, rather than prior to the ceremony. As a result, their marriage was regarded as “putative”. This meant that there was no marriage: as the licence had not been obtained before the ceremony, California’s legal formalities had not been properly complied with.

However, Mrs Burns had believed the marriage ceremony to be valid. In giving evidence before the highly experienced English judge, she described how she had been given an engagement ring, had ordered a wedding dress, had received a subsequent blessing at a local Church followed by a lavish wedding reception on their return to England, and had celebrated the couple’s “wedding anniversary” a year later.

Mr Burns sought to persuade the Court that as the “marriage” in California was not a marriage at all, the Court could not grant a Decree of Nullity. He argued that there was no “marriage” upon which such a Decree could be founded, valid or otherwise. He attempted to persuade the Judge that Mrs Burns was only entitled to seek financial provision as a cohabitant – and that her claims against him as a wife, were nil. Nice try.

Mr Justice Coleridge however is known to me, having been briefed by my firm when he was a Queens Counsel and subsequently after becoming a Judge. When he chaired the Law Society’s Family Law Panel Advisory Board, I was its Chief Assessor. He is a kind and chivalrous man with a passionate interest in justice. He also unhesitatingly stands up for the rights of an English Judge in an English court to apply English law, and in some cases, he expects other courts to follow suit! This included the Bermudian court in the Charman case. They did not play ball;- their predominant interests did not coincide.

Coleridge J. dismissed the husband’s argument. He found that the Matrimonial Causes Act also provided for marriages conducted outside England and Wales.

The Judge explained: “The purpose of the nullity provisions of the MCA 1973 introduced by the Nullity of Marriage Act 1971 was to ensure that where parties intended to marry and went through the proper process but it was in some way or other flawed the Court could nevertheless adjudicate upon their financial affairs as if they had been married.”

Adding that the “legislation is in the interests of public policy and justice”, he stated that s11(a)(iii) and s14 of the Act were tailored to ceremonies that had taken place in other jurisdictions. Accordingly, he granted a Decree of Nullity.

A good family lawyer, when taking instructions about an overseas marriage or a marriage conducted in accordance with certain religious practices in the UK, should take pains to ensure that their client is validly married. If the marriage is invalid, detailed and careful instructions about the circumstances of the ceremony, including the client’s assumptions, should be taken. Failure to consider all the circumstances could end in disaster.

Looking at this from a wider perspective, it does seem to be yet another example of the anomaly that currently exists in our legal system. Namely a woman who is not legally married, and cannot seek a settlement in the country where she got married, can nevertheless ask the English Courts to determine her claims under the nullity provisions and obtain a suitable financial settlement. Compare and contrast her plight with that of a cohabitant. The cohabitant isn’t legally married either – but has no such remedies in law.

Before you protest: yes, I know the answers to that argument! However, doesn’t it seem odd that one unmarried woman has the fortuitous assistance of English law with one set of remedies, while another unmarried woman does not? May I also add, I’m not suggesting that this playing field should be levelled – but shouldn’t the imbalance be redressed in some way so English law can be applied to all people involved in relationship breakdown within its jurisdiction?

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(8)

  1. Name Witheld says:

    Dear Marilyn, i need u advice your help, i am currently married to a man who walk out of the marriage and he went to marry a lady in sweden, rite now he say i am not his wife, yet we are not divorce, we have a daughter together. Can you please assist me on what i am supposed to do, because this man says that there is nothing i can do about it, he still says there is nothing that i can do, what i know is a person cannot marry someone else unless he or she is divorced from the first marriage he married the lady for the sake of papers.

  2. Marilyn Stowe says:

    You have given me some more information in your comment which I have edited and I can see no connection with England. Your contact number is in a third country. You must take immediate legal advice from a lawyer in the country you are living in but in England a second ‘marriage’ is void and illegal, it is a criminal offence, if one party is legally married to another.

  3. What happens when the validity of a marriage is questioned? - Marilyn Stowe Blog says:

    […] different conclusion was reached in the case of Burns v Burns [2008] 1 FLR 813, where the ceremony had taken place in a hot air balloon in California. The parties had not […]

  4. Lilia Chalmers says:

    My marriage to my British husband was null and void, due to my previous marriage in Philippines. i filed a petition of nullity and it was granted by the court. how can we validate our marriage? we are living together since we got married up to now and wanted to stay together for the rest of our lives.

    • Marilyn Stowe says:

      Dear Lilia
      You must get divorced. You can do this in England even though it may not be possible in the Philippines. You should probably get a solicitor to do it for you.
      Regards
      Marilyn

  5. H says:

    I was married in Kenya in 2004 and am now separated from my husband (we are both British). He has the marriage certificate. I have applied to Kenya for a copy of the certificate so I can divorce him ( he won’t hand it over). My marriage was apparantly void as we were issued with the wrong certificate – one for African nationals. There is a chance that the marriage can be held to be valid under the doctrine of presumption if I can prove a marriage existed, I hope to do this. My question is if the marriage is not declared valid, is there any way I can still file for divorce since my husband has the marriage certificate we were issued at the time. Many thanks.

  6. JW says:

    I married a chinese lady in china. I now want a divorce in england where i live. My chinese wife has gone to america for work and does not want to come back. I want to divorce so I can remarry an english woman. How do I prove I am married in China. I have a photo of the marriage which was taken after but cannot find my paper work (I must have had some but I do not know where it is or even recall what I got). Can I just marry again and if I divorce again can my chinese wife claim against me or can my new (hopefully) wife claim against me? I earned all my capital and assets before I met either woman and with my 1st wife who died. I am retired and want to leave my money to my children from my 1st wife but seek to marry as I do not want to be alone in my old age and I treated my wife well. Thanks

  7. Michele Refaei says:

    My husband of almost 40 years has married another woman in Jordan without divorcing me. We are both British and our marriage was in the UK. I’ve been told that this new woman is not technically married to him as it did not take place here. My concern is that if she believes she is married to him, would she have a claim on his estate in the UK? If she goes onto have children and he has not written a will will it mean that she could claim some of the home that I’ve been paying for?

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