(2018) Family Court 54
At common law, a marriage was never invalid for lack of ceremony. It could only be invalid on account of some impediment existing when the marriage was made (e.g consanguinity, or a surviving spouse from a previous marriage).
Since 1753, however, statute law has provided that all marriages must be solemnised in accordance with a legally recognised ceremony. A common law marriage without ceremony is no longer a valid marriage.
This is clear enough in principle. However, it raises the practical question of how perfectly the ceremony must be performed for the law to recognise it. Will the smallest ceremonial slip invalidate the marriage? Is it not harsh to invalidate a marriage because the couple have made an innocent mistake about the ceremony? A fortiori is it not unjust to invalidate the marriage where the mistake has been made by the officiating minister, not the couple?
The Marriage Act 1949 now provides for 2 categories of legally recognised marriage ceremonies
(1) marriage according to the rites of the Church of England (Part 2 of the Act) and
(2) marriage under a superintendent registrar’s certificate (Part 3)
Each of these regimes includes a provision concerning void marriages (s.25 and s.49 respectively).
The case cited above concerned a couple who got married in a Muslim religious ceremony, known as a Nikah, which took place ‘at TKC Chowdhury’s in Southall’ (para 20), i.e in England, and was solemnised by an imam in accordance with Sharia law. The imam warned that a civil ceremony was required for legal recognition of the marriage. The wife, a trainee solicitor, needed no warning: ‘she was expecting the husband to organise … the civil ceremony … she was concerned that her rights were not protected … that they would be treated as cohabitees’.
However, the husband was not interested in a civil ceremony. He ‘fobbed the wife off’ (para 26) and became angry (and allegedly violent) when she kept nagging him about the matter.
Despite these difficulties, the Muslim marriage lasted many years and produced children. Then, eventually, the relationship ‘was shattered by the husband’s proposal to take a second wife’ (para 29). (This may explain his reluctance to make a civil marriage.)
The wife asked the English court to annul the Muslim marriage, and vindicate the rights that she had feared were not protected. The court granted a decree of nullity.
This meant that the wife could make a claim for maintenance (‘alimony’, as it is often called) against the husband, including his property and pension rights, on the same terms as a lawful wife in a divorce case (cf.para 7). A partner in a non-marital cohabitation, by contrast, has no right to make such a claim against her partner when the relationship breaks down.
On one view it may be unsurprising that the court annulled the marriage. Clearly the marriage was not valid in English law. However, as the court observed ‘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’ (para 5).
The comparison with common law marriage indicates the difficulty. If the courts granted nullity decrees to unmarried cohabitees on the basis that their relationship was an invalid common law marriage, it would be fairly easy for cohabitees to acquire the same financial protection as divorced wives. However, the courts do not grant such decrees. So why should a party to a Sharia law marriage be treated more favourably than a party to a common law marriage, when both are equally invalid in English law?
The Matrimonial Causes Act 1973 provides that ‘A marriage … shall be void on the … grounds that it is not a valid marriage under … the Marriage Acts 1949 to 1986 … [inter alia] where … the parties have intermarried in disregard of certain requirements as to the formation of marriage’ (s.11). (The evident policy of the law is that a man should not be able to avoid financial obligations to his wife on account of some defect in their marriage ceremony.)
The question is what, exactly, does s.11 mean by ‘marriage’ and ‘intermarried’? The court acknowledged that ‘Unless a marriage purports to be of a kind contemplated by the Marriage Acts it will not be within s.11′ (para 92), i.e it will not be subject to a decree of nullity. Marriages outside the scope of the 1949 Act, such as common law marriages, will be invalid, but the court still has no power to grant a decree of nullity in respect of them.
As mentioned, there are 2 types of marriage under the 1949 Act in respect of which a decree of nullity may be granted. The marriage in this case was obviously not a Church of England marriage. But was it a ‘marriage under a superintendent registrar’s certificate’, even though the superintendent registrar had had no involvement in the marriage? The court decided that it was.
S.49 of the 1949 Act provides that marriage under a registrar’s certificate ‘shall be void’ where ‘persons knowingly and wilfully intermarry under the provisions of this Part of the Act [i.e Part 3]’, without observing certain requirements laid down by the Act.
The phrase ‘knowingly and wilfully’ indicates that a declaration of nullity depends on the deliberate, intentional conduct (or misconduct), of the parties to the marriage. A declaration of nullity, like a criminal offence, requires a mens rea, a guilty state of mind.
It is therefore argued that s.49 will apply to persons who
(1) intend to make a marriage contract that will be recognised in English law but
(2) deliberately evade or disregard the legal requirements for recognition.
In this case, the couple did indeed disregard the requirements that the Act imposes for marriage under a registrar’s certificate (2). Not just ‘certain requirements’ (per s.11) but all the requirements. But they had a very good reason for this. In holding their Nikal ceremony they never intended to make a marriage recognised by English law (1). They intended only to make a marriage recognised by Sharia law.
Thus there was no attempt to evade legal requirements or deceive the registrar. The only deception was the husband’s promise or indication to the wife that he would arrange a civil ceremony after the Muslim ceremony was over.
The wife, it is true, was anxious that her marriage should be recognised in English law. But she knew very well that the Muslim ceremony would not achieve this. Her own evidence stated that ‘I have married in Sharia law only’ (para 20). Hence her persistent requests to the husband for a civil ceremony.
The husband, by contrast, positively wanted the marriage not to be recognised by English law. (This would have interfered with his apparent right under Sharia law to marry a second wife.)
The court’s decision to grant a decree of nullity was influenced by 2 particular facts
(1) the quality of the Muslim ceremony and
(2) the husband’s ungentlemanly treatment of the wife.
However, it is argued that neither of these facts, correctly understood, supports the court’s conclusion on nullity, but actually undermines it.
(1) The court was evidently impressed that the Muslim ceremony ‘bore all the hallmarks of a marriage … it was held in public, witnessed, officiated by an imam, involved the making of promises and confirmed that both husband and wife were eligible to marry’ (para 95). The couple had ignored the English law concerning marriage, but had scrupulously observed the Sharia law, and the marriage requirements of Sharia law resemble those of English law.
Yet this finding did not justify a decree of nullity. On the contrary, if the Muslim ceremony ‘bore all the hallmarks of a marriage’ this points to its being a valid marriage, not an invalid one. The fact that the ceremony resembles a marriage by registrar’s certificate does not mean that it is such a marriage. S.49 refers only to an unsuccessful attempt to make a marriage contract under the Act.
And the resemblances of the Muslim ceremony to marriage under a registrar’s certificate apply equally to a Church of England marriage. Church of England marriages, no less than registrar’s marriages, are public, witnessed, officiated, involve promises etc. Yet it would be absurd to hold that the Muslim ceremony was a void Church of England marriage, under s.25 of the 1949 Act. Why then should it be regarded as a void registrar’s marriage under s.49?
It is also arguable that reliance on the Muslim ceremony to support a decree of nullity is unfairly discriminatory, since it favours religious people. Muslims, Jews and Catholics have centuries-old marriage laws and ceremonies. Irreligious cohabitees, by contrast, have no recognisable marriage ceremonies other than those provided by English law. If they neglect the legal ceremonies they can only plead common law marriage. But, as mentioned, the courts will not annul a common law marriage. An irreligious cohabitee is therefore at a disadvantage to a cohabitee who has undergone a religious ceremony.
(2) The court found that ‘It was understood by both husband and wife that they were embarking on a process which was intended to include a civil ceremony … The failure to complete the marriage process was entirely down to the husband’s refusal … [of] the civil ceremony’.
The ‘marriage process’ so forensically identified by the court is known in common parlance as an engagement. The husband had promised to marry the wife in a civil ceremony, or had led her to believe that he would do so, and had not kept his promise.
However, it is no longer possible to sue for breach of promise of marriage. The Law Reform (Miscellaneous Provisions) Act 1970, s.1 bears the unequivocal heading ‘Engagements to Marry not enforceable at Law’. It provides that ‘An agreement between 2 persons to marry one another shall not … giv[e] rise to legal rights, and no action shall lie … for breach of such an agreement‘.
The husband behaved badly, but the court had no power to revive a jurisdiction that has been expressly abolished by Act of Parliament. And if the husband was guilty of breach of promise of marriage, this only reinforces the conclusion that there was no attempt to marry in accordance with the Marriage Acts, and therefore no marriage to annul.