Many people choose a religious ceremony when getting married. More often than not these comply with the requirements detailed in my previous post, but there are some cases in which not all the requirements are complied with and the court must decide whether there is a valid marriage.
This post will examine cases involving religious ceremonies where the issue of the marriage’s validity has subsequently arisen.
A religious ceremony which did not constitute a marriage
A recent High Court case concerned the validity of a religious marriage and captured many headlines. The couple involved were Sheikh Ahmed Al-Maktoum, a member of the Dubai royal family, and the woman who claimed to be married to him, Nivin El-Gamal. The case was heard by Mr Justice Bodey who decided that the marriage was in fact not valid. As yet there is no judgment so it is unclear why he came to this conclusion, but reports suggests that it is because there was no written record of their marriage, which was an Islamic ceremony that took place at the Al-Maktoum’s flat in Knightsbridge in January 2007. There was also no evidence from the Iman, who conducted the ceremony, or from the witnesses.
Al-Maktoum tried to argue that this ceremony never took place, but while the judge held that it did – it did not constitute a marriage under English law. The Sheikh consistently argued that El-Gamal was a casual sexual acquaintance, despite the fact that they had a child together.
In the first instance it came before Mr Justice Hedley when an application was made for permission to file a Petition for Decree of Nullity without a marriage certificate (G v M  EWHC 2651 (Fam)). At this time he gave the wife leave to issue a Petition for Nullity without a marriage certificate. However, he stated that this decision was based solely on the evidence considered in that particular application, and whether this needed to be further investigated was a matter for Mr Justice Bodey, as he would be hearing and application under Schedule 1 of the Children Act 1989.
“Essentially play acting”
In the case of Hudson v Leigh  2 FLR 1129 both the “husband” and “wife” were both English but had a home in South Africa, where they spent most of their time. I refer to them as “husband” and “wife” purely for ease of reference, as it was held in this case that the marriage was not legally valid. The wife was a devout Christian and the husband described himself as an “atheist Jew”. In January 2004 they had a religious marriage ceremony at their home in South Africa conducted by a Church minister. This ceremony was to mirror a normal marriage ceremony but they asked that the following statements be removed:
- They were not to be asked if they knew of any lawful impediment to their marriage
- There was to be no reference to them being lawful husband and wife
- There was to be no declaration that they were lawfully married.
They intended to have a civil ceremony at a register office in England the following March, but between these times the marriage broke down. The husband sought a declaration that the ceremony in South Africa did not constitute a valid marriage. The wife argued that the marriage was valid and sought a divorce or, if it was held to be invalid, a decree of nullity on the basis that the formal requirements were not complied with. If she obtained a decree of nullity she would be able to make a financial application against the husband.
The Judge held that while the ceremony was binding “in the eyes of God” the couple were essentially “play acting”. They had mutually agreed prior to the ceremony that it was not to be legally binding. Therefore they were both aware at the time of the ceremony that it was not intended to be legally binding. And had the wife thought that the ceremony would have made them legally husband and wife then she may have been successful in arguing that there was a valid marriage. However, as the marriage broke down so soon after the ceremony it is uncertain whether this would have been the case.
A religious ceremony which did constitute a valid marriage
In the case of A-M v A-M  2 FLR 6 the couple lived as husband and wife for 20 years and had two children together. They had two ceremonies throughout their relationship: an Islamic service in 1980 in London, and one in 1984 in Sharjah, The United Arab Emirates. At the time of the first ceremony both were aware that the husband was already married and it was therefore a polygamous marriage. The second ceremony took place because the husband wished to regularise the wife’s status in English law. He had an Islamic divorce in Sharjah, an Islamic country which recognised polygamous marriages, and held the remarriage three days later.
It was held that neither ceremony created a legally valid marriage under English law, but that there was an existing marriage. The wife was entitled to rely on the rule that cohabitation and reputation of being man and wife together amounted to strong evidence that a lawful marriage had taken place, which would only be rebutted by strong and weighty proof that such a marriage had not taken place. The husband obtained a divorce in Sharjah in relation to the second ceremony but it was held that this divorce was ineffective and could not be recognised by English law because neither party was domiciled in Sharjah, nor habitually resident, nor nationals of Sharjah.
The presumption of marriage
 The rule is well established that the law will wherever possible presume a lawful basis for long cohabitation between man and woman in the capacity of husband and wife. The rule is conveniently put in Rayden and Jackson’s Law and Practice in Divorce and Family Matters (Butterworths, 17th edn, 1997) at 4.11 thus:
‘Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, though there may be no positive evidence of any marriage having taken place, particularly where the relevant facts have occurred outside the jurisdiction; and this presumption can be rebutted only by strong and weighty evidence to the contrary.’
 It is important to observe that this is not a presumption which prevails over positive proof of the contrary. Nor does the cohabitation itself constitute the marriage. Rather, the rule is that cohabitation and reputation of this kind together amount to strong evidence that a lawful marriage has taken place, and only strong and weighty proof that it has not will permit a contrary conclusion. It follows that the presumption will the more readily be applied where the marriage being presumed to have taken place could have occurred with comparatively slight formality.
 In the present case, if lawful marriage is to be presumed between these parties, it must have occurred in an Islamic country, and it must have been a lawful polygamous marriage. It is common ground between the parties, and I so hold, that the presumption must extend to presuming such a marriage, where the domicile of the parties permits it, since the whole rationale of the rule is to find a lawful occasion for the kind of cohabitation in question whenever that can be done. It follows from the evidence of Mr Edge that a valid polygamous marriage could be contracted between these two parties in an Islamic country without any public ceremony, and indeed without the presence of the wife, providing she had at some stage signed a power of attorney, whether knowing exactly what it was, or what it was for, or not. I have accepted her evidence that she did sign documents at the husband’s request from time to time and without applying her mind to what they were for.”
The wife believed that they had entered into a valid marriage and that the ceremony lawfully made them husband and wife. The husband tried to argue that the marriage was not valid. However, at the time he must have believed that it made them legally husband and wife as it was his intention to regulate his wife in English law, as he sought legal advice as to how he should go about doing so.
Chief Adjudication Officer v Bath  1 FLR 8 was another case that centred on the presumption of marriage rule. There had been a Sikh marriage ceremony in a Sikh temple in 1956. The couple had two children together and lived together until the husband died in 1994. However, the ceremony had not taken place in a registered building and had not been registered at the Register Office. Despite this, it was held that the marriage was valid. Had the marriage ended soon after the ceremony, then it is unlikely that it would have been a valid marriage, as no presumption would have arisen from the cohabitation.
The validity of the marriage was not challenged in relation to divorce proceedings, but it was argued that the wife was not entitled to the husband’s pension after his death as she was not his widow due to the marriage not being valid. The judgement followed:
 These authorities show that when the man and women have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form. Thus in Scotland (Captain de Thoren) and Brooklyn, NY (Re Green) it was sufficient that their agreement could be implied. When there is, as there is in England, a legal requirement that the marriage ceremony shall take a certain form, then the presumption operates to show that the proper form was observed, and it can only be displaced by what I would call positive, not merely ‘clear’, evidence (see the authorities cited in support of Halsbury’s Laws, para 993). How positive, and how clear, must depend among other things upon the strength of the evidence which gives rise to the presumption — primarily, the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife.
 I would agree with the Commissioner’s Decision R(G) 2/70 that when there is positive evidence that the statutory requirements were not complied with, then the presumption cannot be relied upon to establish that they were. However, that is not the end of the matter. Mr McManus’ submission assumes that if the place of worship where the ceremony takes place is not registered in accordance with the Act then the marriage is ‘invalid’, or more precisely, that it does not count as a marriage for the purposes of the social security legislation regarding widows’ pensions. This leads to the remarkable conclusion, apart from the injustice of which the respondent complains, that a valid marriage ceremony may be presumed where there is no evidence from the surviving widow, as where she refuses to co-operate by providing information, but it may not be presumed when, as here, she gives a truthful account which leads to the discovery that there was a failure to comply with the requirements of the Act, of which she was and remained unaware. Likewise, when as here she accepts the truth of what the department alleges against her, she is in a worse position than if she had insisted on their producing positive evidence of non-registration (which they have not done). Even more remarkable is the consequence referred to by the commissioner (para 17). A marriage could be presumed from long cohabitation when there was no ceremony, but not when a bona fide ceremony failed to comply with all the requirements of the Act, perhaps for some trivial reason.
 In my judgment, the submission is fallacious, for this reason. There is no statutory provision that a marriage, otherwise carried out in proper form, by an authorised celebrant and at a place of worship eligible to be registered under the Act, is invalid merely on the ground that the building was not registered, for whatever reason. The marriage was not void or voidable under the law in force before 1971 (see Halsbury’s Laws (Butterworths, 4th edn), vol 13, paras 538—539) nor was it rendered void by s 49 of the 1949 Act.”
Had the parties known that the building was unregistered, it would not have been a valid marriage.
It would appear that in order for the marriage to be deemed valid, the parties must think that it was a legally valid marriage. In Hudson v Leigh they specifically asked the minister to remove all references to being lawfully married and intended to have a further civil ceremony when they returned to England, but failed to do so.
In the cases of A-M v A-M and Chief Adjudication Officer v Bath both couples believed they had entered into a legally valid marriage, held themselves out to be husband and wife to others and cohabited for more than 20 years after the ceremony.
It is noteworthy that in the two cases where it was held that there was not a valid marriage, the parties had not been “married” for a substantial amount of time. Would the decisions in those cases have been different had the issue of the validity arisen after they had cohabited for 20 years?
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.