What Makes a Marriage Legal? Marriages, Non-Marriages and Beyond.
Introduction
Marriage is a universal concept that pervades most societies and cultures around the world. What constitutes a legally recognised marriage however may not be immediately evident and will likely vary from state to state. This article considers what constitutes a valid and legally recognised marriage within the United Kingdom, the concept of registration, the position of religious marriages, and the causes of action available on the breakdowns of relationships.
Presumption in favour of Marriage
In the United Kingdom, there has traditionally existed a presumption in favour of marriage, and the validity of marriage. In Piers v Piers[1] for example, the Lord Chancellor, Lord Cottenham, noted that ‘there is a strong legal presumption in favour of the validity of the marriage, particularly after the great length of time which has elapsed since its celebration’.[2] Lord Campbell stated that ‘until the contrary is proved, we are bound to draw the inference that everything existed which was necessary to constitute a valid marriage’.[3]
The courts have gone so far as to assume that a marriage exists, unless proven otherwise. This was reflected in Collett v Collett[4], where Ormrod J stated that the “general approach of English law to the question of the formal validity of a marriage… The general tendency has been to preserve marriages where the ceremonial aspects were in order rather than to invalidate them for failure to comply with the statutory provisions leading up to the ceremony”.[5]
A variety of factors were previously considered in determining the existence of the marriage, including if the couple perceived themselves as married and the duration of the relationship or cohabitation. While the presumption still exists broadly, emphasis on the factors above has shifted and a more practical approach in line with the necessary elements of registration is taken to validate a marriage.
Marriage within the United Kingdom
Marriage in the United Kingdom brings with it a set of rights and obligations in law. There are legal benefits to being married, such as relief from inheritance tax, transfer of property upon death, and wider recourse to financial relief upon separation. Such advantages are not readily available when cohabiting partners separate.
Marriages in the United Kingdom are governed by the Marriage Act 1949, which details the legal requirements that must be satisfied for a recognised marriage to exist. For a marriage to be considered valid and legally recognised within the United Kingdom, it has to have been registered. Registration commonly requires notice to the superintendent registrar of the local area, followed by a civil or religious ceremony within 12 months. Notice indicates an intention to marry and contains within it several legal formalities. Notice is not required for some forms of religious marriages, as discussed below.
Civil and Religious Ceremonies
The civil or religious ceremony that is undertaken must be one that is at least capable of giving rise to a valid marriage.[6] Within the UK, two forms of ceremony can give rise to a legally recognised marriage. The first is a civil ceremony. This is relatively straightforward and requires that a ceremony take place at a Register Office or a place approved place by a local authority in England or Wales, for example, a hotel. It contains no religious element, and the marriage must have been conducted by a person duly authorised to conduct a marriage (a Registrar), as well as having to be entered into the marriage register. The register is signed by the marrying parties, along with two witnesses and the person authorised to register the marriage. A fee is also payable.
The second form of ceremony giving rise to a legally recognised marriage amounts to a religious ceremony. This option encompasses marriages conducted through the Church of England and the Church of Wales, Judaism and Quakers. Ministers or Priests of these religions are authorised to carry out legally valid marriage ceremonies. These ceremonies do not normally require notice to be given to the Register Office. The Church of England and the Church in Wales can register a marriage at the same time as performing the religious ceremony.
This second option does not include other religious marriages, such as Hindu or Islamic marriages. To have these marriages legally recognised, a separate civil ceremony would be necessary. Alternatively, a minister or priest from the religion can be authorised to register the marriage, having obtained a license to so from their local Superintendent Registrar. This individual must attend the wedding in their capacity as a Registrar for the marriage to be registered, and the place of worship where the ceremony is held must have been registered accordingly. Where a mosque is registered, adequate notice given and the ceremony is conducted by a duly authorised priest, a valid Islamic ceremony can occur.
Where a religious ceremony has taken place in the UK, but the marriage has not been registered within the UK, then the partnership does not amount to a recognised marriage recognised in the UK.
Given the importance that is still attached to marriage, it is reasonable to hold that the onus of proof should be on any person challenging the validity of a marriage to show that it is invalid, rather than on the other party to show that it is valid.
As indicated above, marriages that occur within the UK normally require registration. However, where a marriage has occurred abroad, that marriage may be recognised as legally valid within the UK in some circumstances.
Marriages Occurring abroad
For a marriage that took place outside of the UK and was not registered within the UK to be recognised, the marriage must have taken place in accordance with the laws governing the overseas location in which it occurred. The marriage must also be of a form that allowed within the UK[7] e.g. must not be polygamous. Original or certified marriage documentation will normally stand as proof of the marriage.
Taking a Hindu marriage ceremony conducted in India by way of example[8], research indicates that for a religious Hindu ceremony between one party identifying as Hindu, and the other party as identifying non-Hindu to be properly recognised, the parties must obtain a marriage certificate through the local marriage registrar. The Special Marriage Act 1954 also requires, but is not limited to, the following:
a) The parties have to file a Notice of Intended Marriage in the specified form to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given.
b) After the expiration of thirty days from the date on which notice of an intended marriage has been published, the marriage may be solemnised, unless it has been objected to by any person.
c) The marriage may be solemnised at the specified Marriage Office.
d) Each party involved should have no other subsisting valid marriage
e) The parties should be competent in terms of mental capacity to consent to marriage.
Where the parties have not obtained a marriage license and complied with the formalities of the Indian marriage registration procedures, the marriage may not be validly recognised within the UK. However, where the formalities of marriage in India have been complied it, it appears the marriage would be recognised as legally valid, without having been registered in the United Kingdom.
Parties in Unregistered Marriages
It is pertinent to consider the legal positions of parties in unregistered marriages. By way of example, where parties have entered an Islamic marriage, and have not registered the marriage, the marriage is considered a non-marriage. The parties are deemed cohabitants and the court cannot override existing property rights.[9] This creates a clear disadvantage for a party who cannot then make any financial remedy application following the breakdown of their Islamic marriage.
In an Independent Review through a Green Paper titled Integrated Communities in March 2018, under the section on Religious Rights and Freedoms, it was identified that: ‘Other relationships, such as unregistered religious marriages, are also not recognised under marriage law in England and Wales, leaving individuals without full legal rights upon divorce should the marriage break down. This can particularly leave women vulnerable both to financial hardship upon divorce and to unfair treatment by some religious councils.[10]
The situation for the separated partners is then to consider whether they have an invalid or void marriage. Void marriages are noted under s11, Matrimonial Causes Act 1973. The recent case of Akhter v Khan[11] considers invalid and void marriages in depth, and sheds considerable light on the current position of religious marriages.
In the judgment, Williams J noting that an Islamic marriage ceremony did not amount to a valid marriage in English law, provided : “What this case is not about . . . is whether an Islamic marriage ceremony . . . should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely, whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably, it is not that simple”.[12]
The court explained that where a void marriage existed, a court can still provide a level of financial relief under the MCA 1973. A decree of nullity could be requested from the court and in granting this, the court has ‘the same powers to make orders for financial provision as on divorce’.[13] However, where there is an invalid marriage, a non-marriage or a non-qualifying ceremony, the parties are construed as cohabitants only.
In Akhter v Khan, there was no notice given of the marriage, nor was it performed by an authorised person on a registered premise. Had these factors been present, the marriage could have been considered valid and legally recognisable. The case highlighted that factors such as the length of the marriage, the parties having children and any intentions to undertake further ceremonies could not allow for a variation of the clear legal rules currently in place.
This case draws attention to the consequences of a relationship breaking down. When parties separate, financial consequences are thrown into sharp focus. The question arises as to what potential causes of action are open to a person in such circumstances. Several routes to financial relief are considered below.
Children Act 1989, Schedule 1
Schedule 1, Children Act 1989 gives the Court the power to make orders for financial provision for children. These provisions would only relate to the needs of any children, until the age of 18. The court could make a variety of orders, such as those relating to periodical payments, secured periodical payments, lump sum orders, settlement of property and transfer of property.
Where a property, such as the former family home, is in joint party’s names, potentially, the property could be transferred into a party’s sole name, so as to allow the children and the party to remain at the property. However, no such provisions would be made for the needs of the parties. Conversely, where the marriage is legally recognised, each party’s needs would normally be taken into account and accommodated where possible.
Matrimonial Proceedings and Property Act 1970, Section 37
Section 37, Matrimonial Proceedings and Property Act 1970 considered contributions by a spouse in money or money’s worth to the improvement of property. It provides:
It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the husband or wife arises (whether in proceedings between them or in any other proceedings).
For this section to be applicable, the parties must be in a recognised marriage – this would encompass marriages that have occurred outside of the UK, but only those have followed all of the formalities of marriage within that state.
Matrimonial Causes Act 1973, section 11
Section 11 of the 1973 Act provides:
“11. Grounds on which a marriage is void
A marriage celebrated after 31st July 1971, other than a marriage to which section 12A applies, shall be void on the following grounds only, that is to say—
(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where— (i) the parties are within the prohibited degrees of relationship; (ii) either party is under the age of sixteen; or (iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married or a civil partner.
(c) . . .
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.”
S11(a)(iii) of the Matrimonial Causes Act 1973 Act, relates to the nullity of the marriage, which gives rise to the same financial provisions available upon divorce.
In considering void marriages, the Court of Appeal in Akhter v Khan recognised by reference to Dukali v Lamrani and Sharbatly v Shagroon,
“57. Although the immediate issue in each case was whether the respective marriages were marriages within the meaning of the 1984 Act, it is clear that in both cases this was determined through the provisions of the 1949 Act and the 1973 Act. In Dukali, Holman J decided, at [36], that the marriage “was neither valid nor void but was non-existent. It was not valid because there was manifold non-compliance with every requirement of the Marriage Acts as to notification, use of a registered or approved venue, form, authorisation of the officiant and subsequent registration”. It was also not a void marriage because, at [36], “it did not even purport to be a marriage under the provisions of the Marriage Acts”; the parties had not “purported to inter-marry under the provisions of [Part II] of the 1949 Act at all”. It was therefore, at [37], a “non-marriage””.
The courts were quick to conclude that there could be ceremonies which did not create a marriage, or even a void marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity.
Although there may be ceremonies, which are partially compliant with the current legislation and capable of giving rise to invalid or void marriages, courts are unlikely to want to encourage parties who want to marry to rely on such ceremonies given that the legislation is clear as to requirements, and any such decision would lead to uncertainty and potential inconsistencies.[14]
Article 8 European Convention on Human Rights
In Serife Yigit v Turkey[15] the court considered where violation of Article 8 had occurred on the basis that a failure to recognise the parties religious marriage amounted to an infringement of the surviving partner’s right to respect for private and family life.
At paragraph 102 of the judgment, the court held:
“102. Accordingly, the Court is of the view that Article 8 cannot be interpreted as imposing an obligation on the State to recognise religious marriage. In that regard it is important to point out, as the
Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8.”
Article 8 would therefore unlikely be a successful cause of action for financial relief, when the marriage is unregistered.
Conclusion
Where a marriage has been registered in accordance with the legislation governing the UK, or alternatively, the legislation governing the State in which the marriage occurred, then the marriage can be legally recognised in the United Kingdom. This affords the parties to the marriage with the maximum amount of financial relief and protection available to couples formerly in relationships with one another. Religious marriages that do not fall within the scope of the legislation, or those that have not followed the required legal formalities will not be legally recognised and will provide a lesser level of financial protection upon relationship breakdown. It is important for parties who wish to marry or consider themselves married to ensure that any marriage ceremony undertaken follows the formalities currently required by the law, so as to afford themselves a more financially secure future.
[1] Piers v Piers (1849) 2 HL Cas 331, 9 ER 1118
[2] Piers v Piers (1849) 2 HL Cas 331, 9 ER 1118, at p 1136.
[3] Piers v Piers (1849) 2 HL Cas 331, 9 ER 1118, at p 1136.
[4] Collett v Collett [1968] P 482
[5] Collett v Collett [1968] P 482
[6] Collett v Collett [1968] P 482.
[7] https://www.gov.uk/marriage-abroad
[8] https://transferwise.com/gb/blog/getting-married-in-india-guide
[9] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8747
[10] Muslim marriages: financial remedies – [2019] Fam Law 517
[11] Akhter v Khan [2020] EWCA Civ 122
[12] Muslim marriages: financial remedies – [2019] Fam Law 517
[13] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8747
[14] HMAG v-Akhter, Khan & ors [2020] EWCA Civ 122
[15] Serife Yigit v Turkey (3976/05) (2011) 53 EHRR 25
