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When Is a Marriage Not a Marriage?
In England and Wales marriages can be either legally valid or void or voidable.
For many years validity was the preserve of the church or other religious bodies but it became subject to statute in 1753 to outlaw the practice of clandestine marriages and the latest are the Marriage Acts 1949 to 1986 which set out the requisite criteria .
Since 1837 marriage can be celebrated not only in a church or synagogue but also in a civil ceremony in a Register Office and in recent years this has been extended to any place with a licence provided the criteria are met for authorisation by the local authority. There have to be at least 2 witnesses and an authorised celebrant and due notice given.
This has resulted in many outlandish ceremonies taking place under water and in the sky but these may well not be legally recognised and simply ‘repeat’ performances after a valid civil ceremony. Of course marriages celebrated abroad under the requisite criteria for that country are also recognised.
If the ceremony entered into between two people fulfils the requirements it is a valid marriage and can be ended only by death or by divorce in the courts and there is consequential financial and other relief.
If not, and on the face of it, it is unlawful – it is not a marriage and the parties cannot claim any sort of financial relief under the Matrimonial Causes At 1973 as amended.
A purported marriage missing one or more of the normal elements of a marriage is voidable. This can be done because of duress, mistake, intoxication, mental ‘incapacity, spouse having venereal disease at the time, spouse pregnant by someone else of which you were unaware – or , in the case of a ceremony conducted other than in a church, because of mistaken identity. In a Register Office you marry the person you state you intend to marry. In a church you marry the person standing next to you.
A voidable marriage can be ended through the courts by a decree of nullity but exists until then. Even so, a party to the claimed annulment can challenge it if they can satisfy the court that the other party, for example, the wife, knew the marriage could be ended but led him to believe she would not seek to end the marriage so it would be unjust to bring it to an end. Thus a marriage of convenience or companionship where the parties did not intend to have sexual relations, or one of them could not, exists until a decree of nullity is pronounced. A man who cannot consummate the marriage can still apply for a decree of nullity himself if he wishes.
Again there can be consequential financial orders so the distinction is very important.
This has come increasingly to the fore of late where Muslim couples have entered into an Islamic faith marriage in this country which does not comply with the requirements of the Marriage Act 1949 and then seek a divorce and relief through the courts.
Often the parties go through a formal ceremony but never get round to undertaking the usual subsequent civil ceremony. They believe for an extended period that they are validly married and hold themselves out as married to the rest of the world. They may well have children and a marriage certificate. In a very recent case (NA v MSK) in August this year the courts considered this in depth because a ‘wife’ of 20 years’ standing sought a divorce and the ‘husband’ contested this on the basis that they were not in fact legally married although he accepted they had gone through an Islamic Faith marriage and had three children together.
The court found that in every sense save for the issue of legal validity there was a marriage as the parties had been lawfully able to marry each other, had given their consent and had witnesses and all the aspects of a valid Islamic marriage. There could not, however, be a presumption of a valid English marriage as the requirements of English law had not been met.
The court went on to decide that it was therefore a void marriage and the wife was entitled to a decree of nullity – and thus consequential financial relief. Each similar case is going to have to be decided on its facts but it holds out hope to wives in such cases who rely mistakenly on the Islamic ceremony alone.
Eileen has over 40 years of experience in Family Law matters and guides clients through all aspects which need to be sorted when a relationship is breaking down.
She was a former chair of the Law Society’s Family Law committee and has contributed to law reform. She set up Fisher Meredith 42 years ago and was Senior Partner and Head of its Family Department before the merger with Bishop & Sewell where she headed up a large team of dedicated lawyers with a wide range of skills.
Eileen deals with all aspects of relationship breakdown and will achieve for spouses and civil partners and cohabitants suitable settlements in accordance with English law relating to finances, property and children issues arising. She is happy to tackle the partners of those hiding assets or being overly controlling or abusive over money or children and to draw up pre-nuptial and post-nuptial agreements.
Eileen can judge from experience when a case is suitable for mediation or collaborative law and when it is not. She pursues these processes carefully and at the pace the clients wish to go.
Eileen has a reputation for being firm but fair and her clients refer their friends for years to come.