When is a marriage not a marriage? By Laura Guillon

Family Law|February 14th 2012

Getting married is meant to be an exciting, romantic time and no one wants to think about what would happen if it all goes wrong. But how would you feel if your marriage broke down and you found out that you had never been legally married in England in the first place?

Unfortunately, this state of affairs is not that uncommon. If a couple have married abroad or undergone a religious ceremony (covered in my next post) they might not have taken the essential steps to ensure their union is enshrined in English law.

Requirements for a valid English marriage

It is a legal requirement to give notice in advance of a marriage. The notice will be publicly displayed for fifteen days after which time the authority for your marriage can be granted. It will be valid for one year but if you decide to change venues a new notice must be given.

However, if you are getting married in the Church of England or the Church of Wales you do not usually have to give notice of the marriage. If you are having a civil marriage then both of you will need to go to your local Register Office to give notice. This must be done by both of you in person; it cannot be done on your behalf by someone else. You will be required to give certain information when giving notice; including your name, address, date of birth and nationality. Proof of identity needs to be in the form of a passport or driver’s licence. If one party has been married before they will have to show documentary evidence that that marriage has ended. This can be in the form of a Decree Absolute or a death certificate, if the party concerned is a widow or widower.

You both need to have lived in the area in which you will be giving notice for at least seven days immediately before giving notice. You may marry once you have reached the age of 16, but will require parental consent if you are under 18.

A marriage can take place in the following places:

  • A Register Office
  • A Church of the Church of England, Wales and Ireland, or Presbyterian and Roman Catholic Churches.
  • A Synagogue or any other private place if both parties are Jewish
  • A Meeting House if one or both partners are either members of the Society of Friends or are associated with the Society by attending meetings
  • Any other religious building provided that the person marrying the couple is registered by the Registrar
  • Premises approved by the local authority – applications for approval must be made by the owner or trustee of the premises and not the parties wishing to marry. The premises must be regularly open to members of the public so private home are not likely to be approved. Nor will approval be given for open air venues such as beaches or golf courses. The premises will need to be a permanently built structure
  • A place where one partner is seriously ill and not expected to recover
  • The home of one of the partners if the partner is housebound, for example, has serious disabilities or is agoraphobic
  • A hospital, if one of the partners is unable to leave or is detained there as a psychiatric inpatient
  • A prison, if one partner is a prisoner.

The marriage must be carried out by a person authorised to register marriages, or by another individual provided it is in the presence of the person authorised to register the marriage. The marriage must then be entered into the marriage register and be signed by both parties, two witnesses and the person that conducted the marriage. If that person who conducted the ceremony is not authorised to register the marriage, then the person who is authorised to register the marriage must sign it as well.

When is a marriage void?

There is a difference between a void and voidable marriage. Lord Penzance defines marriage in Hyde v Hyde [1866] LR 1 P&D 130 as “the voluntary union for life between one man and woman to the exclusion of all others”. This definition appears to have been reflected when drafting legislation for circumstances when a marriage will be void or voidable. If the marriage is void it is treated as never having existed. A marriage will be void in the following situations:

  • The parties are too closely related to each other i.e. they are a parent (including adoptive or former adoptive parent), a daughter or son (including adoptive or former adoptive daughter or son), a sibling or half sibling, a niece, nephew, aunt or uncle, or a grandparent
  • Either party was under the age of 16 at the time that the marriage ceremony took place
  • The parties have had a marriage ceremony in disregard of certain requirements as to the formation of the marriage, i.e. the requirements for a valid English marriage as stated above have not been complied with
  • At the time of the marriage ceremony either party was already married
  • That the parties are not respectively male and female
  • In the case of a polygamous marriage entered into outside of England that either party was at the time of the marriage domiciled in England. However, the marriage will not be deemed to be polygamous at its inception if at that time neither party had another spouse.

If the marriage is void a decree is not needed to end it, as it never existed. However, a decree is usually obtained as one is needed for a financial order to be made.

When is the marriage voidable?

If a marriage is voidable it will be treated as being valid and subsisting until a decree is obtained. The person applying to have the marriage voided will apply for a decree of nullity which annuls the marriage. The person making the application is the Petitioner in the proceedings and the other spouse is the Respondent. A marriage will be voidable in the following situations:

  • Non-consummation either due to one party’s incapacity or wilful refusal
  • A lack of consent, whether this be because one party was under duress, mistake or an unsoundness of mind at the time
  • One party was suffering from a mental disorder of such a kind that made them unfit for marriage
  • At the time of the marriage one party had a venereal disease in a communicable form and the Petitioner was not aware of it
  • At the time of the marriage the wife was pregnant by someone other than the husband and the husband was not aware of it
  • After the date of the marriage one party was issued with an interim gender recognition certificate.

A voidable marriage will exist until such time as the decree of nullity is obtained. The Petitioner will be barred from obtaining a decree of nullity if the Respondent can satisfy the Court that the Petitioner knew that the marriage could be avoided but conducted him or herself in such a way as for the Respondent to reasonably believe that they would not seek to do so. The Petitioner may also be barred from obtaining a decree of nullity if it would be unjust to the Respondent to do so.

Generally the Petitioner must apply for the decree of nullity within three years of the date of the marriage. However, this does not apply to cases of non-consummation, or in cases in which an interim gender recognition certificate has been issued. The three year bar is not an absolute bar as the Petitioner may apply for leave of the Court to extend this time limit.

Why is it important to distinguish between a void and voidable marriage?

It can be an important distinction in relation to widows’ pensions. If a marriage is void it never existed therefore a widow will not be entitled to their spouse’s pension, as technically he or she was never their spouse. However, if the marriage is voidable then the marriage existed and a widow will be entitled to their spouse’s pension provided the marriage has not been annulled. This distinction was looked at in the case of Chief Adjudication Officer v Bath [2000] 1 FLR 8 which will be discussed in more detail in my next post, on religious marriages.

Any person may seek a declaration that a marriage is void, whereas only the parties to the marriage may seek a declaration that the marriage is voidable. This reflects the grounds upon which a marriage may be void or voidable. The grounds upon which a marriage may be declared void are issues which reflect public policy, therefore any person can seek a declaration of nullity. However, the grounds upon which a marriage is voidable are not a matter of public policy, but concern where there is a problem in the marriage and one spouse wishes to have it annulled.


Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.

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  1. DT says:

    Hi Laura

    This is a really interesting, well written and very well put together post on an area of the law lots of people have heard of but perhaps don’t fully understand; (and I include myself in there)! You made it very accessible; well done!

    I must confess to sadly knowing very little about the law relating to marriage and divorce, and so I’m always very interested to read such quality entries and articles.

    I like the Munch picture too. I think Munch’s ‘The Scream’ would have worked just as well for this posting!

    Just as an aside, perhaps in the future, this blog might like to feature a dedicated article on Civil Partnerships as such articles are currently conspicuous by their absence?! While the day-to-day living for participating couples may be very similar to that of a marriage, different legislation of course enables a same-sex union.

    I know that it’s not a huge area of the law, however, it does affect a small but nevertheless significant (and growing) number of people.


  2. Jessica says:

    Afternoon Laura,
    Brilliant summary, I dread when clients mention one of these grounds in passing! A common mistake I come across is clients assuming that because they’ve lived together for three years they have a “common law marriage” which completely changes the nature of the relationship breaking down. In light of the legal aid changes for the next family seminar we do I am suggesting a brief overview of divorce proceedings, cohabitation rights etc, since clients acting in person are just overwhelmed by the process as well as their emotions.

  3. Marilyn Stowe says:

    Hi I’m away right now but I will gladly post on Civil Partnership. Is there a specific area you would like me to cover?
    Back next week. It’s very warm in Eilat!

  4. DT says:

    Eilat?! You lucky thing, it’s 7°C here!

    There wasn’t one specific thing in relation to Civil Partnerships (CP) I had in mind really. I’m not looking for legal advice for myself, (I have happily been in a Civil Partnership since early 2006). I am, however, of the opinion that gay people are proportionally under-represented in family legal blogs/articles etc. Perhaps you disagree?

    Where the same rules apply to heterosexual and gay couples, then I don’t see a need to differentiate, however, when it comes to marriage (something gay people cannot currently enter into), then there is a noticeable absence of anything equivalent, or even a reference to the fact that the same law probably would apply, but it has yet to be tested. There may be good reasons for this – I don’t know.

    When references (and particularly stats.) are made to ‘Marriages’, they are, I presume, excluding CPs, however, CP figures do not appear to be represented elsewhere, or along side. I believe that because CPs are so infrequently referred to, their significance is understated by writers, hence why perhaps we don’t see them in articles/on blogs etc., and I know that they are conspicuously absent, because I am looking for them!

    Despite the year being 2012, only some job applications (and application forms for car insurance and the likes) have a CP option when requesting personal details. I have seen quite a few asking for ‘Marital Status’ and offering everything but the CP option. In this kind of scenario, I tick “Married”, which isn’t correct, however, when the alternative is “Divorced”, “Widowed”, “Cohabiting” or “Single”, it’s the next best thing. Come to think of it, there isn’t an option for those who have had their CP dissolved. They can’t tick “Divorced”, because they can’t marry!

    Between 2005 and 2010, according to the Office for National Statistics (ONS), 46,622 couples (or 93,244 people), in the UK, entered into a CP. This may be significantly fewer than those entering into a marriage; however, it is not an insignificant figure, (and we still have 2011 figures to add to that).

    When one glances over the services offered by some family law firms, most (although by no means all) advertise that they offer CP dissolution, however, I am rather cynical as to the level of experience some lawyers may have in this area.

    This is not actually a criticism and is probably more to do with access, numbers and the local demographic, nevertheless, one cannot help thinking that it’s been tucked in there to “tick a box”! I know the process is similar to a divorce, and some may not feel the need to say any more, however perhaps some reassurance that it’s more than a pleasantry might be an idea?

    If we’re underrepresented in blogs, given (in my opinion) a token mention in law firms’ ‘Services Offered’ then I wonder if the family lawyers are really ready for us?!

    I think that this is an ‘industry oversight’ Marilyn, not a ‘Stowe oversight’. Your site provides much more information than I have seen on any other site; granted I have not seen them all, but I have seen a quite a few and I always look!

    The possibility of ‘gay marriage’ has hit the headlines recently. David Cameron said at the Tory party conference last year:

    “We’re consulting on legalising gay marriage. To anyone who has reservations, I say: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

    Political traditionalists are against this move as are some religious figures in the church. I note that the Arch Bishop of York, Dr Sentamu (the second most senior Church of England cleric) is vehemently opposed.

    Do you think same-sex marriage should be available? What about heterosexual couples wanting to form a Civil Partnership? There are of course those for and against in both groups. In reality, what would this actually bring? Is it warranted? Is this about genuine choice or is it political correctness gone mad?

    The law relating to CPs is evolving. I note that since the Civil Partnership Act came into force, the removal of the ban on Civil Partnerships in churches and other religious premises was agreed via a free vote in both houses in a late amendment to the Equality Act 2010 before the coalition came in. I understand changes will only affect England and Wales. Nevertheless, this will be a tremendous break through for some people; however, there will no doubt be others who disagree.

    As I am sure you are more than fully aware, opening up in London will expose you to different demographics. I suspect that (over time), you will see larger numbers of individuals in the south seeking your help dissolving their CP, than you perhaps do in the north. Maybe I’m wrong; I don’t know.

    According to the ONS:

    Civil partnerships by area of formation:

    “As in 2009, London was the region with the highest number of registered civil partnerships in 2010 with almost a quarter (24 per cent) of all civil partnerships (1,095 male and 462 female).

    ONS: Statistical Bulletin – Civil Partnerships in the UK 2010 [7th July 2010]

    A few years ago, the “Pink Pound” was buoyant.

    “According to research by gay market research company Out Now Consulting, homosexual men and women earned upwards of £81bn in 2007”. THE OBSERVER: 25.04.10.

    I think that this income figure has taken a bit of a knock (and it doesn’t say if it’s net or gross), as more couples are adopting, fostering or having their own children.

    Nevertheless, I think law firms are over-looking a big market out there, and I for one think gay people perhaps need a bit of reassurance that there’s quality out there if we need it. If I’m wrong, and my perceptions are not borne out in reality, then I’ll hold my hands up high!

    Anyhow, if you could write something (whatever you see fit), at some point (whenever – no rush), on CPs, I think that would be brilliant and I hope some other people might enjoy reading your opinions and ideas too. Perhaps I should have started with, “Dear Marilyn, please could you fix it for me…….”?!

    So, I’ll climb down off my soapbox now, however, I just thought that this was ‘food for thought’ for a forward-looking firm.

    Who knows, if you corner the ‘Pink Market’, you might even become the next gay icon like Lady Gaga, Kylie, Cher (the real one), Judy Garland, Mary Portas, Elizabeth Taylor or Sir Elton John!

    Before I go, have you ever thought about a Smartphone app. for your blog/site? I often access your blog via my iPhone and I think it would be altogether ‘smoother’ if one could do so via an app. Don’t worry; I’m not trying to sell you one! I just think it could improve access and I’m sure there might be some marketing/branding benefits to be had! A cost/benefit analysis could tell you pretty quickly if I’m right. Just an idea anyhow.

    Enjoy the sunshine.


  5. DT says:


    I should just like to clarify:

    When I say, “I think law firms are over-looking a big market out there”, I’m not just talking about when/if things go wrong; I’m talking about really tailoring a package of bespoke services; pre-nups/post-nups/new Wills to be drawn up post ceremony etc.

    Also, I gave ONS figures for the UK and we are in England, with English law, however, I wanted to give a ‘national flavour’. The English figures are on there if anybody wishes to look.


  6. Marilyn Stowe says:

    Hi DT
    Thanks very much for your comments which are very interesting. You are quite right about demographics. I do have gay issues to deal with but only from time to time. The issues which have arisen in one particular case would make a great post but my client is so well known he is impossible to disguise and therefore I can’t write about it. What I was able to do in that case was a negotiation which led to a review of policy in a given sector. That’s all I can say!
    I’m happy to consider a guest post from you I think it will be very interesting.
    I’m spending the next couple of days in Tel Aviv which I’m sure you know is known as the pink capital of the Middle East. Life there is incredibly laid back and tolerant. That’s the thing about Israel. You get say two people and ten thousand opinions.

  7. Richard Hanstock says:

    Great resource for students new to family law. Well-written and succinct. I look forward to reading more of your posts!

  8. DT says:

    Hi Marilyn

    Perhaps I can e-mail you once you have returned and had a few days to acclimatise, as I am mindful that you’re on holiday right now and will have loads to do after time away from the office upon your return?

    You’re lucky you’re allowed to use your iPhone/iPad whilst you’re away – mine get’s confiscated. I feel positively bereft without it, which is silly.

    Have a wonderful time in Tel Aviv.


  9. joy says:

    my husband is married in his first wife,but the problem is in his married contract theres something wrong with his name (wrong spelling)is there marriage is viodable?

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