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When are we married? Void, non-existent and presumed marriages

Published online by Cambridge University Press:  02 January 2018

Rebecca Probert
Rebecca Probert*
Affiliation:
University of Warwick
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Abstract

In recent years the courts have been faced with the problem of deciding what status should be given to marriages that are celebrated outside the provisions of the Marriage Act 1949 yet believed to be valid by the parties to them. Some such marriages have been classified as non-marriages, while others have been saved by the application of the presumption in favour of marriage. The decisions are unsatisfactory for a number of reasons. It will be suggested that the concept of non-marriage should be confined to ceremonies that in no way purport to be marriages. The presumption in favour of marriage should also be limited to situations where there is a valid basis for presuming a marriage rather than being used to avoid dealing with the deficiencies of the law.

Type
Research Article
Information
Legal Studies , Volume 22 , Issue 3 , September 2002 , pp. 398 - 419
Copyright
Copyright © Society of Legal Scholars 2002

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References

1. [2001] 2 FLR 6.

2. [2001] 2 FLR 6.

3. [2001] 1 FLR 603.

4. Re Spence, deceased [1990] Ch 652 at 661 per Nourse LJ (referring, not quite accurately, to a void marriage).

5. See eg Riddlesden v Wogan Cro Eliz 858; 78 ER 1084.

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8. Inheritance (Provision for Family and Dependants) Act 1975, s 25(4). The claimant must have entered into the marriage in good faith and not have married again during the lifetime of the deceased, and the marriage must not have been annulled or dissolved.

9. Civil Registration: Vital Change - Birth, Marriage and Death Registration in the Twenty-First Century (Cm 5355, 2002).

10. 26 Geo II c 33.

11. Although it should be noted that the courts tried to uphold marriages wherever possible and made it difficult to prove non-compliance: see Robert, R ‘The Judicial Interpretation of Lord Hardwicke's Act’ (2002) J Legal History (forthcoming)Google Scholar.

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13. 4 Geo 4 c 76, s 22.

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15. [1997] 1 FLR 854 at 858.

16. (1845) 1 Rob Ecc 304; 163 ER 1047.

17. (1845) 1 Rob Ecc 304 at 317. This statement was made in the context of an Act of New South Wales but was of general application, as the judge confirmed in Campbell v Corley (1856) 4 WR 675.

18. J Barton ‘Irregular Marriages’ (1973) 89 LQR 181.

19. See further nn 93–94 below, and accompanying text.

20. J Thomson ‘Irregular Marriages’ (1974) 90 LQR 28.

21. Thompson, n 20 above, at 30.

22. P Lucas ‘Common Law Marriage’ (1990) 49 CLJ 117.

23. Lucas, n 22 above, at 133.

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25. See A Barlow and S Duncan ‘New Labour's Communitarianism, Supporting Families and the Rationality Mistake, Part II’ (2000) 22 JSWFL 1 at 8–12; Pickford, R Fathers, marriage and the law (London: Family Policy Studies Centre for the Joseph Rowntree Foundation, 1999).Google Scholar

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28. (1843) 10 CI & F 534.

29. While the decision in R v Millis (1843) 10 Cl & F 534 has attracted extensive criticism, both because it went against the general understanding of the law and on account of the way in which it was decided (for a discussion of which see J Hall ‘Common Law Marriage’ (1987) 46 CLJ 106), it was held by the House of Lords in Beamish v Beamish (1861) 9 HL Cas 274; 11 ER 735 to be binding authority. See also Merker v Merker [1963] P 283.

30. The effect of the decision in R v Millis (1843) 10 Cl & F 534 has been mitigated by the fact that a priest is not necessary in the only circumstances where a common law marriage can actually take place: Wolfendon v Wolfendon [1946] P 61; Isaac Penhas v Tan Soo Eng [1953] AC 304. See also James, T ‘The English Law of Marriage’ in Graveson, R and Crane, F (eds) A Century of Family Law (London: Sweet & Maxwell, 1957) ch 2.Google Scholar

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33. [1966] 1 QB 159 at 169. Unlike the earlier case of R v Moharned [1964] 2 QB 350, upon which reliance was placed, there was no evidence that the parties did not know that the ceremony would not create a valid marriage under English law.

34. [1997] 1 FLR 854. It was in any case void as the parties had ignored the advice that a civil ceremony was also necessary. Thus the problems described above did not need to be resolved.

35. [2001] 2 FLR 6 at 24.

36. 2001 WL 825206 at para 34.

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40. [2000] 1 FLR 8 at 22. It should be noted that in the case of Russell vAG [19491 P 391 a Roman Catholic marriage was upheld on similar grounds to that in Bath, rather than reliance being placed on its Christian nature.

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43. W Leong ‘Formation of Marriage in England and Singapore: void marriage and non-marriage’ (92000) 14 IJLPF 256.

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51. Eg Kelly v Kelly (1932) 49 TLR 99; Mehta v Mehta [1945] 2 All ER 690.

52. Matrimonial Causes Act 1973, s 12(c).

53. Kelly v Kelly (1932) 49 TLR 99 at 100.

54. Thus, in duress cases there must be evidence of threats: see A Bradney ‘Duress, Family Law and the Coherent Legal System’ (1994) 57 MLR 963; similarly, there must be convincing grounds for the mistake as to the ceremony or person: Valier v Valier (1925) 133 LT 830.

55. W Horton Rogers ‘Sham Marriages’ (1974) 4 Fam Law 4.

56. Thus the Law Commission observed that its proposal that it should be made an offence to celebrate a marriage knowing that it was void would not apply to plays or charades, ‘that could not lead anyone into believing that a legal performance had been constituted’: Solemnisation of Marriage in England and Wales (Law Com WP No 35, 1971) para 140.

57. For a discussion of the history of such practices, see R Outhwaite Clandestine Marriage in England, 1500–1850 (London: The Hambledon Press, 1995) pp 21–22.

58. Even some borough councils make reference to hand-fasting as an ‘alternative marriage practice’ and provide contact details: see eg http://www.rushmoor.gov.uk/lee14.htm.

59. I am working on the assumption that pagan communities are aware that their marriage rites are not legally binding. If, on the other hand, there is a genuine belief in their validity, such marriages would fall to be considered under the test propounded in section 2B(ii), in which case the Registrar General would have the task of deciding whether paganism constituted a religion.

60. The extent to which this exemption represented religious toleration is perhaps doubtful, given the fact that other known religions did not enjoy a similar exemption. An alternative view is that the Act was ‘conceived in a spirit of bigoted intolerance towards Roman Catholics and all dissenters - save only Jews and Quakers’: Howard, n 48 above, p 480.

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63. Cm 5355, n 9 above. Complete parity would be achieved if the Anglican church resolves to accept civil preliminaries, a matter that is currently being debated.

64. Cm 5355, n 9 above, para 3.16.

65. Cm 5355, n 9 above, para 3.18.

66. Cm 5355, n 9 above, para 3.21.

67. Marriage (Scotland) Act 1939, s 4.

68. ONS Marriage, divorce and adoption statistics, 1998 (London: Stationery Office, 2000) Tables 3.43 and 3.42.

69. ONS, n 68 above, Table 3.40.

70. In such case the state counts only the civil ceremony, even though the parties doubtless regard it as being of less significance.

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74. See eg C Barton ‘White Paper Weddings - The Beginnings, Muddles and Ends of Wedlock’ (2002) Fam Law 431.

75. It was described in Collins v Bishop (1878) 48 LJ Ch 31 as a broad principle ‘essential to the interests of society’: at 33 per Malins VC.

76. Conran v Lowe, otherwise Daniel, calling herself Conran (1754) 1 Lee 630; 161 ER 230 at 638–639. See also Doe d Fleming v Fleming (1827) 4 Bing 266; 130 ER 769.

77. Conran v Lowe, otherwise Daniel, culling herself Conran (1754) 1 Lee 630; 161 ER 230 at 638–639.

78. Eg Re Ivory, Chippendale v Ivory (1886) 2 TLR 468, where it was emphasised that the wife was not a woman of light character.

79. Eaton v Bright and Sundland (1755) 2 Lee 85; 161 ER 272; Read v Passer (1794) 1 ESP 213; 170 ER 332; R v Yeomuns (1869) 1 LT 369.

80. Elliott v Totnes Union (1892) 9 TLR 35; Re Thompson, Lungham v Thompson (1904) 91 LT 680. Such evidence was not necessarily decisive, especially if the family might have a motive for denying the marriage: Goodman v Goodman (1859) 28 LJ Ch 745.

81. R v Hassall (1826) 2 C & P 434; 172 ER 196; Evans v Morgan (1832) 2 Cr & J 453; 149 ER 192; Re Thompson (1904) 91 LT 680.

82. Re Haynes, Haynes v Carter (1906) 94 LT 431.

83. Re Tuplin, Watson v Tate [1937] 3 All ER 105.

84. See eg Hervey v Hervey (1773) 2 Wm B1 877; 96 ER 516 (‘wife’ was presented at court); Goldstone v Goldstone (1922) 127 LT 32 (husband described himself as married on official forms); Re Taylor (deceased) [1961] 1 All ER 55 (husband described himself as widower after wife's death).

85. Andrewes v Uthwutt (1886) 2 TLR 895. More weight was attached to the statements of the husband in Elliott v Totnes Union (1892) 9 TLR 35 where there were independent witnesses.

86. In re Shephurd, George v Thyer [1904] 1 Ch 456.

87. Lady Mayo v Brown (1753) 1 Lee 271; 161 ER 100; Fox v Bearblock (1881) 17 Ch D 429; Collins v Bishop (1878) 48 LJ Ch 31.

88. Andrewes v Uthwutt (1886) 2 TLR 895.

89. Re Haynes, Haynes v Curter (1906) 94 LT 431; In re Green, Noyes v Pitkin (1909) 25 TLR 222; In re Stollery, Weir v Treasury Solicitor [1926] Ch 284; Re Brudshuw, Blundy v Willis [1938] 4 All ER 143.

90. [1961] 1 All ER 55.

91. See also Collett v Collett [1968] P 482; Sichel v Lambert (1864) 15 CB (NS) 781; 143 ER 992.

92. (1964) 108 SJ 260.

93. N Wikeley (2000) JSWFL 313 at 321.

94. [2000] 1 FLR 8 at 23.

95. (1791) 4 Term Rep 468; 100 ER 1123.

96. 26 Geo II c 33, s 11.

97. [1904] 1 Ch 456.

98. (1867) LR 1 Sc & Div 182.

99. (1876) 1 App Cas 686.

100. (1867) LR 1 Sc & Div 182 at 200.

101. The husband had remarried before his divorce from his first wife was made absolute, not realising that he was not free to remarry.

102. The possibility of contracting a marriage per verbu de prusenti was only finally removed in 1940: Marriage (Scotland) Act 1939, s 5.

103. In A-M v A-M [2001] 2 FLR 6 there had in addition been an attempt to marry in Sharjah after the original ceremony had been discovered to be void, but this too had proved ineffective. It did, however, show that active steps were being taken to remedy the original defect.

104. [2001] 2 FLR 6 at 16.

105. (1886) 2 TLR 895.

106. (1886) 2 TLR 895 at 897.

107. [2001] 2 FLR 6.

108. Lyle v Ellwood (1874) LR 19 Eq 98; Collins v Bishop (1878) 48 LJ Ch 31; Re Haynes (1906) 94 LT 431.

109. [2001] 1 FLR 460.

110. Re Taylor [1961] 1 All ER 55.

111. Mahadervan v Mahadervan [1964] P 233 at 246. See also Hill v Hill [1959] 1 WLR 127; Russell v AG [1949] P 391.

112. See J Murphy ‘The Recognition of Overseas Marriages and Divorces in the United Kingdom’ (1996) 47 NILQ 35 for a discussion of the role of discretion in assessing the validity of overseas marriages.

113. Steadman v Powell (1822) 1 Add 5 8; 162 ER 21.

114. Art 1, adding to art 16 of the Universal Declaration of Human Rights. See Hamilton, C Family, Law and Religion (London: Sweet & Maxwell, 1995) p 45.Google Scholar

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116. Re Ivory (1886) 2 TLR 468; Re Haynes (1906) 94 LT 431; Re Taplin [1937] 3 All ER 105.

117. Re Shepherd [1904] 1 Ch 456; Re Ivory (1886) 2 TLR 468; Collins v Bishop (1878) 48 LJ Ch 31.

118. Thus, in Sastry Velaider Arongery v Sembecutty Vaigalie (1881) 6 App Cas 364 widespread concubinage did not affect the presumption as concubines were treated differently from wives.

119. See J Haskey ‘Cohabitation in Great Britain: past, present and future trends - and attitudes’ (2001) 103 Population Trends 4; and Scott, J ‘Family change: revolution or backlash in attitudes?’ in McRae, S (ed) Changing Britain: Families and Households in the 1990s (Oxford: Oxford University Press, 1999)Google Scholar ch 3 for discussions of the lack of disapproval attached to cohabiting relationships.

120. Cf Re Taplin [1937] 3 All ER 105.

121. C Shaw and J Haskey ‘New estimates and projections of the population cohabiting in England and Wales’ (1999) 95 Population Trends 7.

122. C Smart and P Stevens Cohabitation Breakdown (London: Family Policy Studies Centre, 2000) p 15. For evidence that many cohabiting women did represent themselves as married, see A Brown and K Kiernan ‘Cohabitation in Great Britain: evidence from the General Household Survey’ (1981) 25 Population Trends 4.

123. Asian women in particular are unlikely to cohabit without marrying: the proportions have been described as ‘negligible’: S Heath and A Dale, ‘Household and family formation in Great Britain: the ethnic dimension’ (1994) 77 Population Trends 5. The proportion of couples that gave the same address at a Muslim or Sikh ceremony of marriage was 33% and 6% respectively, although the numbers are too small to make any meaningful comparisons, especially since couples who went through a civil ceremony as well are excluded. See ONS, n 68 above, Table 3.40.

124. [1970] AC 777.

125. [1970] AC 777 at 824.

126. ONS, n 68 above.

127. See Probert, n 13 above.

128. Clive, E ‘Marriage: an unnecessary legal concept?’ in Eekelaar, J and Katz, S (eds) Marriage and Cohabitation in Contemporary Societies (Toronto: Buttenvorths, 1980) ch 8.Google Scholar

129. Cm 5355, n 9 above.