What happens when the validity of a marriage is questioned?

When is a marriage a marriage? Can it be a legal marriage if it didn’t begin as one? When is a marriage void? Or, if it is not a void marriage, when is it a non-marriage?

Confused? You aren’t the only one! 

This is an interesting and topical area, which has been highlighted by a recent case, MA v JA and the Attorney General [2012] EWHC 2219 (Fam). But let’s begin by looking at the law.

When a marriage is void
In law, under section 11 of the Matrimonial Causes Act 1973, the parties to a marriage must have legal capacity to marry each other.  For example, if they are brother and sister, or one party is under 16, any marriage ceremony that takes place will be void from the start. It cannot ever be a legally valid marriage.
Similarly, under section 12 of the Matrimonial Causes Act 1973, a marriage may be declared void if one or more factors apply. For example, if the marriage has not been consummated, or if the respondent “was pregnant by some person other than the petitioner” at the time of the marriage.
Even if two people have legal capacity to marry, all marriage ceremonies in this country must comply with the requirements of the Marriage Act 1949, or the marriage may still be void.
Section 49 of the Marriage Act states (emphasis mine):

If any persons knowingly and wilfully  intermarry under the provisions of this Part of this Act –

(a) without having given due notice of marriage to the superintendent registrar;

(b) without a certificate for marriage having been duly issued …

(d) on the authority of certificates which are void by virtue of subsection (2) of section thirty-three of this Act;

(e) in any place other than the church, chapel, registered building, office or other place specified in the notices of marriage and certificates of the superintendent registrar …

(ee) in the case of a marriage purporting to be in pursuance of section 26(1)(b) of this Act, on any premises that at the time the marriage is solemnized are not approved premises;

(f) in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated; . . .

(g) in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superintendent registrar;

the marriage shall be void …

 Not every marriage conducted in this country is compliant with the requirements of the Act. So when one or more of the requirements has not been complied with, is the marriage void?
The law is clear: if the parties have not complied with the formalities, then it cannot be presumed. It is a matter of what they believed at the time of the marriage.
Some serious points of public policy are at stake. If marriages can circumvent the requirements of the law, the floodgates for other areas of the law, such as state benefits, immigration and so on can also be opened.

MA v JA: the arguments
In the recently published case of MA v JA, the parties married in a mosque in Middlesbrough in 2002. They sought a declaration that their ceremony of marriage created a valid marriage under section 55 of the Family Law Act 1996. The Attorney General opposed the application, arguing that the ceremony was “of no effect under English law”, and was a “non-marriage”:

By a Petition dated 21st August 2009, the Petitioner seeks a declaration pursuant to section 55(a) of the Family Law Act 1986 that the marriage celebrated on the 15th August 2002 between the Petitioner and the Respondent was a valid marriage at its inception. It is asserted in the Petition:

1. On the 15th August 2002 the Petitioner was married to the Respondent at Middlesbrough Abubakr Mosque and Islamic Cultural Centre, Middlesbrough …

2. The marriage was concluded according to Islamic Sharia. …

4. The Petitioner and the Respondent believed that the marriage they underwent was valid and constituted a proper and valid marriage in accordance with English law.

5. Since the date of the marriage the Petitioner and the Respondent have lived together as husband and wife in the belief that they were validly married.

The Attorney General filed the following in an Answer:

It is denied that the ceremony created a valid marriage or a marriage entitled to recognition because it failed to comply with the requirements of the Marriage Act 1949 and/or was conducted outside the provisions of the Act. It is averred that the purported marriage is void under section 11(a)(iii) of the Matrimonial Causes Act 1973 in that the parties “intermarried in disregard of certain requirements as to the formation of marriage” or alternatively that it is a ‘non-marriage’ on the basis that the ceremony did not even purport to be of the kind contemplated by the 1949 Act.

The Attorney General also submitted that:

Public policy requires strict observance of the rules which govern the formation of marriage and that it would be contrary to public policy to permit the rules to be circumvented in the manner sought in this case.  It would cause confusion and uncertainty in an area where certainty is clearly in the public interest….that ignorance on the part of the Petitioner and the Respondent cannot transform what took place in this case into a valid marriage.

The mosque in which the couple married was registered for the purposes of marriage, and the first marriage had taken place there in 1988. The Chairman of the Mosque, who was authorised to conduct marriages there, was a witness. The Imam, who conducted the ceremony, was not authorised to conduct marriages there until 2003, the following year. He said later that he believed he was performing “a religious ceremony only.” The marriage certificate issued to the couple was not compliant with the standard form. Instead they were given a document signed by the Imam, headed “Contract of Marriage”. The document stated that the “Marriage Contract was concluded according to Islamic Sharia.”
The marriage, which was not formally registered, appeared to have taken place outside the provisions of the Marriage Act.  So was it lawful?

MA v JA: the law
Mr Justice Moylan has handed down a judgment that is fascinating, both from an historical and legal perspective. In it, he takes the parties back through time to the Clandestine Marriage Act of 1753, otherwise known as Lord Hardwicke’s Act:

The 1753 Act required the publication of banns of marriage, the solemnisation of the marriage in the church or chapel where the banns had been published and the presence of two witnesses.  The punishment for anyone found guilty of solemnising a marriage other than in accordance with the provisions of this Act was transportation for 14 years.  The Act also provided that where the ceremony failed to comply with certain of the requirements of the Act – in a place other than a church or chapel, where banns have been usually published; without publication of banns or licence from a person having authority to grant the same; by licence where either of the parties is under 21 without consent – the marriage was null and void.  Jews and Quakers were exempted from the provisions of the 1753 Act but it applied to all other persons.  

Tough? It certainly was, and the punishment meted out reflects the solemn attitude to marriage at that time. The judge goes on to explain how the cases that came before the court were dealt with throughout the 19^th century, and how the law developed. The Marriage Act 1836, for example:

The 1836 Act again provided that a marriage would be null and void only (my emphasis) if the parties knowingly and wilfully married in breach of certain requirements of the Act including by marrying in any place other than the church or registered building or other place specified in the notice and certificate; or without due notice to the registrar; or without a duly issued certificate or licence; or in the absence of the registrar where the presence of the registrar was required.  It remained a felony for a person to solemnise a marriage other than in the place specified in the notice and certificate or in the absence of the registrar when required.

On the whole the courts were sympathetic to couples who thought they were married, who lived together following the ceremony as man and wife and who, in many cases, went on to have children. Their breaches were inadvertent and they were ignorant of the real position. Had the marriages been void, there would have been serious consequences for the parties, and also for the children.
As the judge (later the law lord) Sir Jocelyn Simon put it, in one 1964 case:

Where there is a ceremony followed by cohabitation as husband and wife, a strong presumption arises that the parties are lawfully married.

In a more recent case, Chief Adjudication Officer v Bath [2000] 1 FLR 8, which has been featured on this blog previously, a couple married in a Sikh temple in 1956 and had two children. However, the ceremony had not taken place in a registered building and had not been registered at the Register Office. Following the husband’s death it was held that the marriage was valid.
In that case, Lord Justice Evans concluded:

These authorities show that when a man and a woman 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 … the presumption operates to show that the proper form was observed and it can only be displaced by … positive not merely ‘clear’ evidence … 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.

Some ceremonies, however, cannot be considered as marriages in any sense because they bear little or no resemblance to a recognised marriage. One such case, featured in the judgment, was Al-Saedy v Musawi (Presumption of Marriage) [2011] 2 FLR 287.
In that case, Mr Justice Bodey decided that a family gathering in a flat in London, at which the parties entered into a religious agreement, “never set out to be nor purported to be a ‘bona fide ceremony’ at all, in the sense of complying with the requirements of English law”. He also decided that the parties could not have reasonably thought that any such ceremony satisfied the requirements of English law. Such a case was clearly a non-marriage.
So was Gandhi v Patel [2002] 1 FLR 603, where the relevant ceremony had been a Hindu ceremony of marriage conducted by a Brahmin priest at a restaurant in London.
In that case, Mr Justice Park concluded:

The Hindu ceremony did not give rise to a ‘void marriage’. Rather it created something which was not a marriage of any kind at all, not even a marriage which was void. It might be described as a ‘non-marriage’ rather than a void marriage.

A 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 obtained the necessary licence before the ceremony, so it was not valid under Californian law. The wife, however, had believed the ceremony to be valid. She told the judge how she had been given an engagement ring, ordered a wedding dress, received a subsequent blessing in an English church and hosted a wedding reception.
Mr Justice Coleridge rejected an argument that the ceremony created a non-marriage. It was, he declared, “nowhere near to the category of cases where the marriage can be described as a non-marriage”.
The difference between the two is important. If a marriage is declared void, the parties can still make claims for ancillary relief against each other. If it is a non-marriage, they cannot.

MA v JA: the judgment
Mr Justice Moylan considered the facts. He analysed the law and considered all the authorities, including the leading textbook on the subject (Jackson’s Formation and Annulment of Marriage, from 1969), which states:

The question whether a marriage is void, voidable or valid presupposes the existence of an act allegedly creative of a marriage status.

The judge found on the facts that there was indeed a marriage ceremony and that the parties had entered into it in good faith, believing they were entering into a legally binding marriage.
The outcome of this case won’t open any floodgates. The barriers to recognition of a valid marriage are still high. Each and every case is fact dependent.
Mr Justice Moylan’s judgment is, however, a very useful round-up of all the authorities in all the areas of law swirling around void, voidable and non-marriages.
I’ve done my best to simplify the law, so I hope you are less confused than you may have been when you first began reading! If in doubt, do take a look at the full judgment – it’s recommended reading.
UPDATE
Since I last posted on this subject, there has been another similar case but decided by Holman J.
In the case of Dukali v Lamrani,  there had apparently been no effort to comply with the requirements of the Marriage Act. In that case and supported by the Attorney General,  the Judge held that despite the parties subsequent cohabitation and birth of a child, and their divorce in Morocco, it was a non marriage and the wife’s application for financial relief in this country therefore failed.