Book contents
- Frontmatter
- Contents
- Table of Cases
- Table of Legislation
- Notes on Contributors
- Acknowledgements
- One Introduction
- Two Determining the Boundaries Between Valid, Void and ‘Non-Qualifying’ Marriages: Past, Present and Future?
- Three ‘Cohabitants’ in the Law of England and Wales: a Brief Introduction
- Four Modern Marriage Myths: the Dichotomy Between Expectations of Legal Rationality and Lived Law
- Five The Case for Moving Away from ‘Non-Marriage’ Declarations
- Six Religious-Only Marriages and Cohabitation: Deciphering Differences
- Seven From Regulating Marriage Ceremonies to Recognizing Marriage Ceremonies
- Eight Nikah Ceremonies in the UK: a Tool for Empowerment?
- Nine In Pursuit of an Islamic Divorce: a Socio-Legal Examination of Practices Among British Muslims
- Ten Arbitration as a Legal Solution for Relationship Breakdown in the Muslim Community: the Case of the Muslim Arbitration Tribunal
- Eleven ‘Regrettably it is not that Simple’: the Case for Minimalistic Marriage Laws
- Twelve Conclusion
- References
- Index
Two - Determining the Boundaries Between Valid, Void and ‘Non-Qualifying’ Marriages: Past, Present and Future?
Published online by Cambridge University Press: 19 March 2021
- Frontmatter
- Contents
- Table of Cases
- Table of Legislation
- Notes on Contributors
- Acknowledgements
- One Introduction
- Two Determining the Boundaries Between Valid, Void and ‘Non-Qualifying’ Marriages: Past, Present and Future?
- Three ‘Cohabitants’ in the Law of England and Wales: a Brief Introduction
- Four Modern Marriage Myths: the Dichotomy Between Expectations of Legal Rationality and Lived Law
- Five The Case for Moving Away from ‘Non-Marriage’ Declarations
- Six Religious-Only Marriages and Cohabitation: Deciphering Differences
- Seven From Regulating Marriage Ceremonies to Recognizing Marriage Ceremonies
- Eight Nikah Ceremonies in the UK: a Tool for Empowerment?
- Nine In Pursuit of an Islamic Divorce: a Socio-Legal Examination of Practices Among British Muslims
- Ten Arbitration as a Legal Solution for Relationship Breakdown in the Muslim Community: the Case of the Muslim Arbitration Tribunal
- Eleven ‘Regrettably it is not that Simple’: the Case for Minimalistic Marriage Laws
- Twelve Conclusion
- References
- Index
Summary
Introduction
In recent years the question of when a marriage should be valid, when it should be categorized as void, and when it will not be recognized at all, has attracted considerable attention. Yet much of the commentary – and many of the cases – fail to engage with the precise terms of the legislation governing this area.
Understanding how the law has evolved is crucial to an appreciation of why the concept of a ‘non-qualifying ceremony’, while unattractive to some, is nevertheless a necessary one under the current state of the law (Probert, 2013). Looking at when and why different provisions and potential grounds for invalidity were added over time also suggests ways in which the current framework might be reformed to minimize the likelihood of a wedding either resulting in a void marriage or no marriage at all.
The evolution of the law
Before 1753 marriage was governed by the canon law, and the validity of a marriage depended on whether it had been conducted by an ordained Anglican clergyman (Probert, 2009a). Non-Anglican ceremonies were not afforded legal recognition. The only exception to this was the acceptance that Jewish marriages were governed by Jewish law, but this apparent privilege rested on the fact that Jewish people were regarded as legal aliens.
It is telling that there are no decisions of the ecclesiastical courts holding non-Anglican ceremonies to be void. There would have been no point in the parties litigating where the outcome was a foregone conclusion, and no advantage in obtaining a decree of nullity at a time when that conferred no rights to apply for provision. The few early 18th-century cases that did consider the rights of couples who had gone through a non-Anglican ceremony were decisions of the common law courts, which did not have the right to decide on the validity of a marriage. Making the presence of an Anglican clergyman both necessary and sufficient was problematic in two respects. First, it meant that a marriage could be invalidated if the person who had solemnized it was not in fact ordained.
- Type
- Chapter
- Information
- Cohabitation and Religious MarriageStatus, Similarities and Solutions, pp. 15 - 26Publisher: Bristol University PressPrint publication year: 2020