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Home > Judgments > 2012 archive

MA v JA and the Attorney General [2012] EWHC 2219 (Fam)

Application for a declaration under section 55(a) of the Family Law Act 1986 that a marriage which took place in a mosque was a valid marriage at its inception. Application granted.

The petitioner and respondent underwent a ceremony of marriage in a mosque in 2002. The ceremony was conducted by an Imam. The petitioner and respondent intended that the ceremony would create a valid marriage under English law. The Imam believed he was 'only' performing the religious ceremony. It was agreed that the ceremony did not comply with the requirements of the Marriage Act 1949. The petitioner and respondent sought a declaration that the marriage was a valid marriage at its inception. The Attorney General intervened in the case and opposed the declaration citing public policy reasons which required the rules governing the formulation of marriage should be strictly observed.

Moylan J summarised the issues as: whether a ceremony conducted in England and Wales which does not comply with the requirements of the Marriage Act 1989 either:

(a) results in a marriage which is entitled to legal recognition as a valid marriage or results in a marriage  which is a void marriage;

(b) has no effect under English law.

Moylan J surveyed fully the statutory history and relevant case law.  He concluded that:

(1) The presumption of marriage did not apply in this case as the evidence clearly established that the requirements of the Marriage Act 1949 were not fulfilled and the presumption could not be relied upon to establish that they were.

(2) Notwithstanding the above the marriage ceremony was in its character 'of the kind' contemplated by the Marriage Act 1949. It was conducted in an authorised building in the presence of an authorised person.   A marriage was therefore created.

(3) The marriage was not void as the parties did not knowingly and wilfully breach the requirements of the Marriage Act 1949.

Moylan J therefore granted the declaration that the marriage was valid in English law.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers


___________________


Neutral Citation Number: [2012] EWHC 2219 (Fam)

Case No: MB09F02150
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2012

Before :

THE HON. MR JUSTICE MOYLAN

Between :

MA Applicant

- and - 

JA

-and-

Her Majesty's Attorney General Respondent
Intervener
  

Miss Proops (instructed by Messrs Newbys, Solicitors) for the Applicant
The Respondent appeared in person
Mr Gupta QC (instructed by the Treasury Solicitor) for the Intervener


Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

THE HON. MR JUSTICE MOYLAN

This judgment is being handed down in private on 27th July 2012. It consists of 26 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

 The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.


 
The Hon Mr Justice Moylan : 
1 In this case I must determine whether a ceremony of marriage which was conducted in England is capable of creating a valid marriage under English law and, if it is, whether it has.

2 The Petitioner and the Respondent assert that they are validly married pursuant to a ceremony of marriage which took place at the Middlesbrough Abubakr Mosque and Islamic Cultural Centre ("the Mosque") on 15th August 2002.  The Petitioner, supported by the Respondent, seeks a declaration under section 55(a) of the Family Law Act 1986 that the marriage was a valid marriage at its inception.  The Attorney General has intervened in this case and opposes the application, submitting that the ceremony was of no effect under English law and resulted in, what has become known as, a "non-marriage". 

3 The Petitioner was represented at the hearing by Miss Proops.  The Respondent appeared in person.  The Attorney General was represented by Mr Gupta QC.  I am extremely grateful to the Attorney General for intervening in this case.

4 The Petitioner, the Respondent and the Imam, Mr Allam, who conducted the ceremony have all provided written evidence and they each gave oral evidence.  I have also read a number of witness statements from members of the family who attended the ceremony.

5 This case raises directly the issue of when a ceremony conducted in England and Wales which does not comply with the requirements of the Marriage Act 1949 ("the 1949 Act"):

(a) results in a marriage which is either a marriage which is entitled to legal recognition as a valid marriage or is a marriage which, although this might seem a contradiction in terms, results in a marriage which is a void marriage. 

I put it this way in respect of a void marriage because such a marriage has the effect and consequences prescribed by the Matrimonial Causes Act 1973; or

(b) is of no effect under English law.

6 The progress of this case has been very unsatisfactory for a variety of reasons.  However, I do not propose to address this matter in this judgment.

Background
7 The Petitioner and the Respondent were both born, in 1974 and 1978 respectively, and have lived their entire lives in the North East of England.  The Petitioner has always worked in the family business which was started by his father.  He is a co-director.  The Petitioner and the Respondent have been in a relationship since the mid 1990s.  They have three children.  In 2001/2002 the Petitioner and Respondent decided to marry. 

8 The Petitioner made the arrangements for the marriage.  The Respondent took no part, leaving it to the Petitioner.  He knew a lot of marriages had been conducted at the Mosque so he contacted the Chairman and asked whether he and the Respondent could get married at the Mosque.  He was told that he could and booked the date.  The Petitioner knew nothing about the need for notice or a certificate or any of the formal requirements of the 1949 Act and made no enquiries beyond his discussion with the Chairman of the Mosque.  He accepted the Chairman's response that he and the Respondent could get married at the Mosque.  In the course of his oral evidence the Petitioner said that he relied entirely on the Chairman and the Imam to tell him what was required.  He also said that he and the Respondent feel they have been let down by the Chairman and the Imam.  I agree with this observation.

9 The Mosque was registered for the solemnisation of marriages under section 41 of the 1949 Act on 22nd January 1992.  A number of people have been certified as authorised to be present at the solemnisation of marriages in the Mosque under section 43 of the 1949 Act, including the Chairman of the Mosque, Mr Luft, in 1998 and the treasurer, Mr El-Naggar in 2003.  Mr Allam became an authorised person on 27th February 2003.  This information has been provided by the Superintendent Registrar's office which has also said that the first marriage in the Mosque to be registered under the 1949 Act took place on 19th June 1998.

10 The ceremony in this case took place on 15th August 2002 at the Mosque.  The parties attended with the Petitioner's sisters and the Respondent's sister.  They were met by the Chairman and the Imam.  The ceremony was conducted by the Imam.  Mr Luft was present during the ceremony.  The parties were asked words to the effect of whether there was any reason why they could not marry and whether they both freely consented to marry.  It was clearly a ceremony of marriage in which the parties each agreed to take the other as husband/wife.  After the ceremony the Respondent asked the Imam whether they were now married or whether there was anything else they needed to do.  He assured them that they were and that there was not.  The parties signed a register book of some description and were provided with a document signed by the Imam and headed "Contract of Marriage".  This certifies that the "Marriage Contract was concluded according to Islamic Sharia …" and that the marriage was "proposed by" the Petitioner and "accepted by" the Respondent in the presence of two named witnesses.  One of the witnesses is the Chairman of the Mosque who, as I have said, has been an authorised person under the 1949 Act since 1998.

11 In her oral evidence, the Respondent said that she accepted the Imam's assurance that they had done everything they needed to do.  She knew that the Mosque was a registered building - in the sense that the Petitioner had told her that marriages were conducted there - and said she had no reason to doubt what the Imam said.

12 I am satisfied by the evidence that both the Petitioner and the Respondent intended to contract a marriage which was valid under English law and believed that they had done so as a result of the ceremony at the Mosque.

13 Mr Allam, the Imam, understandably, has no specific recollection of the ceremony in this case.  He was first appointed an Imam of the Mosque in 1996.  He worked there, as a deputy to a more senior Imam, from 1996 to 1998.  He was then appointed as the Imam of the Central Mosque in Middlesbrough where he stayed until March 2002 when he returned to the Abubakr Mosque following the departure of the previous Imam.  As I have said, Mr Allam was not an authorised person until February 2003.  In his oral evidence he said that his practice has changed since he became an authorised person.  At the time of the ceremony in this case he did not discuss with the parties whether they wanted "just" a religious marriage or whether they wanted a civil marriage as well.  He believed that he was performing a religious ceremony only.  He knew about the requirements for a civil marriage but he did not discuss these with the parties in this case at all. 

14 The parties have lived together as a married couple since the date of the ceremony.  I am satisfied, as referred to above, that the parties considered themselves to be married demonstrated, for example, by the fact that in his will dated 15th March 1997 the Petitioner refers to the Respondent as his wife.

15 The Petitioner and the Respondent became aware that there might be problems with their marriage in about 2009 as a result of attending other marriages.  The Respondent went to the Register Office to try and obtain a marriage certificate and was informed that their marriage was not registered.

Proceedings
16 By a Petition dated 21st August 2009, the Petitioner seeks a declaration pursuant to section 55(a) of the Family Law Act 1986 that the marriage celebrated on the 15th August 2002 between the Petitioner and the Respondent was a valid marriage at its inception.  It is asserted in the Petition:

"1. On the 15th August 2002 the Petitioner was married to the Respondent at Middlesbrough Abubakr Mosque and Islamic Cultural Centre, Middlesbrough …

2. The marriage was concluded according to Islamic Sharia. …

4. The Petitioner and the Respondent believed that the marriage they underwent was valid and constituted a proper and valid marriage in accordance with English law. 

5. Since the date of the marriage the Petitioner and the Respondent have lived together as husband and wife in the belief that they were validly married."

17 As I have indicated, the Respondent supports the Petition and filed an Answer to that effect.

18 The Attorney General filed an Answer in which it is denied that the ceremony created a valid marriage or a marriage entitled to recognition because it failed to comply with the requirements of the Marriage Act 1949 and/or was conducted outside the provisions of the Act.  It is averred that the purported marriage is void under section 11(a)(iii) of the Matrimonial Causes Act 1973 in that the parties "intermarried in disregard of certain requirements as to the formation of marriage" or alternatively that it is a 'non-marriage' on the basis that the ceremony did not even purport to be of the kind contemplated by the 1949 Act.

The Parties' Submissions
19 I can summarise the parties' submissions relatively shortly.

20 In her initial written submissions, Miss Proops accepts that the marriage "appears" to have taken place outside the provisions of the Marriage Act in part because it was not formally registered.  However, she relies on the presumption of marriage, which arises both from cohabitation and reputation and from a ceremony of marriage followed by cohabitation, and on the meaning and effect of section 11 of the Matrimonial Causes Act 1973.  Whilst Miss Proops recognises that the presumption of marriage may not be sufficient in this case, she submits that the presumption is a manifestation of "public policy which is generally to support marriages".

21 Miss Proops points to the fact that the 1949 Act addresses only the circumstances in which a marriage is void, namely when the parties have "knowingly and wilfully" married in disregard of certain of the provisions of the Act.  It does not stipulate which of the requirements set out in the Act have to be fulfilled in order for a marriage to be within the scope of the Act.   Miss Proops submits that the marriage in this case was in its character "of the kind contemplated by the Act" and is not a "non-marriage".  She submits that the fact that, as stated in the Contract, it was concluded according to Islamic Sharia does not prevent it from being a marriage within the meaning of the 1949 Act.  The ceremony purported to be a lawful marriage, it bore enough of the hallmarks of marriage and the parties intended it to be a valid marriage.  It was the voluntary union of the parties and the wording used included exclusion of any kind of impediment. 

22 Miss Proops further relies on the fact that the ceremony took place in a registered building and in the presence of an authorised person, namely Mr Luft.  In summary, Miss Proops submits that the ceremony in this case created a valid marriage under English law.  In support of these submissions she has referred me to a number of authorities which I consider later in this judgment.

23 Mr Gupta on behalf of the Attorney General opposes the application for a declaration.  He submits that what occurred in this case was a "non-marriage", in other words a ceremony which is not within the scope of the 1949 Act at all.  Further, he submits that the evidence in this case clearly rebuts any presumption of marriage.

24 In addition, Mr Gupta submits that there are powerful public policy reasons for the court declining to grant the declaration sought by the Petitioner and the Respondent.  He submits that public policy requires strict observance of the rules which govern the formation of marriage and that it would be contrary to public policy to permit the rules to be circumvented in the manner sought in this case.  It would cause confusion and uncertainty in an area where certainty is clearly in the public interest.  He also submits that ignorance on the part of the Petitioner and the Respondent cannot transform what took place in this case into a valid marriage.

25 I fully accept that there is a clear public interest in marriages being subject to certain formal requirements, including in particular proper registration, so that their existence can be relatively easily established.  This is in the interests of the State and of the parties to the marriage.  The status of marriage is an important status which carries with it a variety of rights and obligations under English law.  It is in the interests of those wishing to marry in England both to know whether the ceremony they propose to undertake does or does not create a valid marriage under English law, with all the consequent rights and obligations, and subsequently to be able to prove that they have entered into a marriage recognised as valid under the law of England and Wales.   Accordingly, as Mr Gupta sets out in his written submissions, statutory provisions provide that marriages in England and Wales must be in one of the forms now set out in the 1949 Act, must be preceded by preliminaries in one of the forms authorised in the Act and must be followed by registration.

26 However, the courts have long been inclined to uphold the existence of a marriage by, for example, applying the presumption as relied on by Miss Proops.  As Ormrod J (as he then was) said in Collett v Collett [1968] P 482, at p. 492:

"In my judgment, the principle which emerges from the corpus of legislation regulating the formation of marriages in England and from the reported cases arising there from is that, if a ceremony of marriage has actually taken place which, as a ceremony, would be sufficient to constitute a valid marriage, the courts will hold the marriage valid unless constrained by express statutory enactment to hold otherwise.  This is consistent with the traditional concept both of the common law and of the canon law that the essence of marriage is the formal exchange of voluntary consents to take one another for husband and wife".

27 This is, no doubt, based in part on the public interest in the rights and obligations consequent on marriage being provided to and imposed on all those who go through a ceremony of marriage which has taken place in this jurisdiction.

28 The question is, where is the line to be drawn between a ceremony which is sufficient to create a potentially valid marriage and one which is not?  What is a ceremony "which, as a ceremony, would be sufficient to constitute a valid marriage"?  The parties' submissions have focussed on the 1949 Act and more recent authorities.  As the 1949 Act was a consolidating statute, I propose, after setting out the relevant provisions of that Act, to start my analysis of the issues raised by the case by considering some of the previous legislative and jurisprudential history, starting with the Clandestine Marriages Act 1753, better known as Lord Hardwicke's Act.

The Statutory Framework
The Marriage Act 1949 ("the Act")
29 The Act sets out, in Part II, the formalities required to effect a marriage according to the rites of the Church of England and, in Part III, the formalities required to effect a marriage otherwise.  I am only concerned with the latter, which includes marriages in a register office, in a registered building and on approved premises.  All such marriages are required to be "solemnised on the authority of two certificates of a superintendent registrar": section 26.  Further, section 27 provides that "notice of marriage in the prescribed form shall be given … to the superintendent registrar …".  By section 28 the registrar is not permitted to issue a certificate for marriage "unless the notice of marriage is accompanied by a solemn declaration in writing … by the person by whom the notice is given and attested … that he or she believes there is no impediment of kindred … or other lawful impediment to the marriage …".

30 There are a number of specific provisions in respect of marriages in registered buildings, commencing with section 41.  Section 41(1) provides:

"Any proprietor or trustee of a … building, which has been certified as required by law as a place of religious worship, may apply to the superintendent registrar … for the building to be registered for the solemnisation of marriages therein."

31 Section 43(1) provides:

"For the purposes of enabling marriages to be solemnised in a registered building without the presence of a registrar, the trustees or governing body of that building may authorise a person to be present at the solemnisation of marriages in that building and, where a person is so authorised … the trustees or governing body … shall, within the prescribed time and in the prescribed manner, certify the name and address of the person so authorised to the Registrar General and to the superintendent registrar …".

32 Section 44 deals with the form of the ceremony itself.   Section 44(1) provides that the marriage can be solemnised according to "such form and ceremony" as the parties "may see fit to adopt".  However, certain requirements are stipulated.  Section 44(2) requires the marriage to be solemnised "with open doors in the presence of two or more witnesses and in the presence of either" a registrar or an authorised person.  Section 44(3) and (3A) provide that at some point in the ceremony the parties must declare that they know of no lawful impediment/legal reason why they may not marry.  The parties must also say that they take the other as their "lawful wedded" or "wedded" wife/husband.

33 Section 44(4) provides that a marriage shall not be solemnised in a registered building without the presence of a registrar until duplicate marriage register books have been supplied.

34 Section 46A and 46B deal with marriages on approved premises.  Marriages conducted on approved premises must take place in the presence of the superintendent registrar or a registrar.

35 Section 48 specifically provides that proof of certain matters is not necessary to establish that a valid marriage has been effected, "nor shall any evidence be given to prove the contrary in any proceedings touching the validity of marriage".  Among the matters covered by this provision is "that the registered building in which the marriage was solemnised had been certified as required by law as a place of religious worship".

36 Section 49 sets out what failures will result in the marriage being void:

"If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act –

(a) without having given due notice of marriage to the superintendent registrar;

(b) without a certificate for marriage having been duly issued …

(d) on the authority of certificates which are void by virtue of subsection (2) of section thirty-three of this Act;

(e) in any place other than the church, chapel, registered building, office or other place specified in the notices of marriage and certificates of the superintendent registrar …

(ee) in the case of a marriage purporting to be in pursuance of section 26(1)(b) of this Act, on any premises that at the time the marriage is solemnized are not approved premises;

(f) in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated; . . .

(g) in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superintendent registrar;

the marriage shall be void …"

37 Part IV of the Act deals with the registration of marriages.  In the case of a marriage solemnised in a registered building without the presence of a registrar, section 53(e) places the registration obligations on the authorised person in whose presence the marriage was solemnised.

38 Section 65(3) provides that a certified copy of an entry in a marriage register book sealed or stamped with the Registrar General's seal is admissible as evidence of the marriage to which it relates "without any further or other proof of the entry".

39 Section 75 deals with offences relating to the solemnisation of marriages, which include:

"(1) Any person who knowingly and wilfully …

(a) solemnizes a marriage at any other time than between the hours of eight in the forenoon and six in the afternoon (not being a marriage by special licence, a marriage according to the usages of the Society of Friends or a marriage between two persons professing the Jewish religion according to the usages of the Jews) …

(2)(a) solemnizes a marriage … in any place other than …

(ii) the registered building … specified … in the notices of marriage and certificates …

(b) solemnises a marriage in any such registered building as aforesaid (not being a marriage in the presence of an authorised person) in the absence of a registrar of the district on which the registered building is situated …

shall be guilty of a felony and shall be liable to imprisonment for a term not exceeding five years".

40 It can be seen from the statutory framework set out above that there is a heavy obligation on the celebrant to ensure that the marriage is conducted in accordance with (certain of) the requirements of the Act.  It is the person who "solemnises" the marriage who is liable to prosecution under section 75.

41 Section 11 of The Matrimonial Causes Act 1973 sets out the grounds on which a marriage is void.  They include,

"(a) that it is not a valid marriage under the provisions of the Marriage Acts … that is to say where …

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage."

This is clearly a reference to the provisions of section 49 of the 1949 Act.

The 1753 Act
42 The 1753 Act required the publication of banns of marriage, the solemnisation of the marriage in the church or chapel where the banns had been published and the presence of two witnesses.  The punishment for anyone found guilty of solemnising a marriage other than in accordance with the provisions of this Act was transportation for 14 years.  The Act also provided that where the ceremony failed to comply with certain of the requirements of the Act – in a place other than a church or chapel, where banns have been usually published; without publication of banns or licence from a person having authority to grant the same; by licence where either of the parties is under 21 without consent - the marriage was null and void.  Jews and Quakers were exempted from the provisions of the 1753 Act but it applied to all other persons. 

43 The effect of the 1753 Act was "so stringent" (Bromley's Family Law 10th Ed p.53) that pressure developed to relax the consequences of non-compliance.  The rigour of the provisions was said to have resulted in many cases which "produced very injurious consequences"; "at length the legislature interfered to prevent the mischievous effects resulting from the provisions of this act, and to soften the rigour of the existing law": per Sir Herbert Jenner in Wright v Elwood (1837) 163 E.R. 231, 234.

44 The 1753 Act was repealed by the Marriage Act 1823.  In order to alleviate the consequences of non-compliance it was provided, by section 22, that a marriage would be void only if "any persons shall knowingly and wilfully" marry in breach of certain of the requirements of that Act.  This was a significant change.  The requirements  which were included within this provision were – marriages without due publication of banns or without a licence from a person having authority to grant the same; marriages in any place other than a church or chapel where banns may be lawfully published; and marriages solemnised by any person not being in holy orders.  As stated in Bromley, in all other cases a marriage was valid notwithstanding any breach of any of the other requirements of the 1823 Act (such as, the presence of two witnesses).  The circumstances in which a marriage was void were expressly restricted no doubt in part because of the presumption in favour of finding that a marriage had been validly created.

45 The approach taken by the courts to the structure of the 1823 Act can be seen, for example, from R v Birmingham Inhabitants (1828) 8 B & C 30, Wright v Elwood and Dormer v Williams (1838) 1 Curt. 870, 163 E.R. 301.  In the first of these, which involved the marriage of a minor without the consent of his father, Lord Tenterden CJ, giving the judgment of the court, upheld the validity of the marriage in part on the basis that the statute merely required consent and did not make the marriage void if solemnised without consent.

46 In Wright v Elwood the parties had married without the "due" publication of banns as it was alleged that the wife used a false name and at the time was married so was not entitled to be called a spinster.  The wife's previous husband died (it appears by chance) before the disputed ceremony.  In his judgment, Sir Herbert Jenner, applying the words of the 1823 Act, decided that unless both parties were "accessory to the fraud" the marriage was valid.

47 Dormer v Williams concerned a ceremony of marriage which had been conducted by an ordained priest in an Anglican church under a licence granted by someone who had no authority to grant it.  The marriage was found to be valid.  In the course of his judgment, Dr Lushington said, at 303/304:

"The present act (the Marriage Act 1823) is very different from Lord Hardwicke's Marriage Act. By that act it was intended to enforce with the utmost rigour the form and mode in which all marriages should be solemnised, by the serious penalty of nullity if the very words of the statute were not complied with. By the present act in order to render a marriage null and void, both the parties to the marriage must have wilfully violated the act with a full knowledge of the consequences; here is, therefore, a striking difference between the two statutes, and what may have been done with reference to the former marriage act can have little effect with regard to the construction of the present act."

48 By the Marriage Act 1836, marriages could be contracted by a ceremony at a register office or in any building (certified as a place of religious worship) registered for the solemnisation of marriages and after a registrar's certificate had been issued as an alternative to banns or a licence.  Non-Anglican places of worship had to have been duly registered and the ceremony had to take place in the presence of a registrar.  The form and ceremony was such as the parties "see fit to adopt" provided that at some point the parties declared that they knew of no lawful impediment to their marriage and said prescribed words to the effect that they took the other as their wife/husband.  Quakers and Jews were again exempted from the provisions of this Act provided that notice was given to the Registrar and that the Registrar's certificate had been issued.  At the same time, the Births, Deaths and Marriages Registration Act 1836 created a national civil system for the registration of births, marriages and deaths. 

49 The 1836 Act again provided that a marriage would be null and void only (my emphasis) if the parties knowingly and wilfully married in breach of certain requirements of the Act including by marrying in any place other than the church or registered building or other place specified in the notice and certificate; or without due notice to the registrar; or without a duly issued certificate or licence; or in the absence of the registrar where the presence of the registrar was required.  It remained a felony for a person to solemnise a marriage other than in the place specified in the notice and certificate or in the absence of the registrar when required.

50 The general approach taken by the courts to failures to comply with the statutory requirements can be seen from Catterall v Sweetman (1845) 163 E.R. 1047, another decision by Dr Lushington.  In that case a ceremony of marriage had been conducted in New South Wales in breach of the requirements of the relevant statutory provisions.  The ceremony had been conducted by a Presbyterian minister of the Church of Scotland when the parties were not and had not declared that they were members of that Church (as required by the relevant legislation).  Dr Lushington said, at 1052:

"From this examination I draw two conclusions: first, that, so far as my research extends, it appears that there never has been a decision that any words in a statute as to marriage, though prohibitory and negative, have been held to infer a nullity, unless that nullity was declared in the act. Second, that, viewing the successive Marriage Acts, it appears that prohibitory words, without a declaration of nullity, were not considered by the Legislature as creating a nullity, and that this is a legislative interpretation of acts relative to marriage."

Later he added, at 1053:

" … I find no instance of any words in any Marriage Act being held to import a nullity, if the act did not expressly create a nullity."

51 Likewise, in Greaves v Greaves (1872) LR 2 P & D 423, at 424, Lord Penzance, The Judge Ordinary, considered the validity of a marriage conducted without banns or a licence having been obtained.  A licence had been applied for but it was not issued until after the ceremony had taken place   Lord Penzance decided that the marriage was valid:

"I understand the meaning of … (the statutory provision) … to be that the marriage is only to be annulled if it is established affirmatively to the satisfaction of the court that at the time when the ceremony was solemnised both parties were cognizant of the fact that a licence had not issued and being cognizant of that fact wilfully intermarried."

He left open the question of whether it was also necessary for each party to be aware that a licence was necessary.

52 Authorised persons were introduced by the Marriage Act 1898 but otherwise there were no relevant changes to the legislative structure prior to the 1949 Act. 

Presumptions
53 It is also instructive to consider some of the authorities dealing with the application of the presumptions in favour of marriage because they provide examples of the circumstances in which a marriage has been determined to have been effected when, self-evidently, it cannot be demonstrated that the requirements of the relevant statutory provisions have been fulfilled and the marriage has not or cannot be shown to have been registered.  The presumption applies to fill the evidential gaps and clearly does so on the basis that the ceremony, as a ceremony, is sufficient to bring it within the potential scope of the relevant statutory provisions: i.e. a ceremony of the kind contemplated by those provisions.

54 When determining whether a marriage has been proved, the courts have long applied two rules of law, as referred to in Mahadervan v Mahadervan [1964] P 233, per Sir Jocelyn Simon P. (as he then was), at 244:   

" … Two rules of law expressed in Latin maxims therefore come into play: omnia praesumuntur rite esse acta as regard the acts of the officials and omnia praesumuntur pro matrimonio. Where there is a ceremony followed by cohabitation as husband and wife, a strong presumption arises that the parties are lawfully married."

55 Rayden and Jackson on Divorce and Family Matters, 18th Ed., refers to the following presumptions.  The presumption "from cohabitation and reputation" is set out in. para. 7.11:

"Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed, though there may be no positive evidence of any marriage having taken place, particularly where the relevant facts have occurred outside the jurisdiction; and this presumption can be rebutted only by strong and weighty evidence to the contrary".

The rule of Scottish common law to like effect has been abolished: The Family Law (Scotland) Act 2006, s. 3; Bromley's Family Law 10th Ed. p. 64.  This presumption is not relied on in the present case.

56 The presumption "from ceremony followed by cohabitation" is set out in Rayden at para. 7.12:

"Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary …".

57 This latter presumption appeared in the first, 1907, edition of Halsbury's Laws of England and was said to have been contributed by Sir Henry Bargrave Deane; it was described as "a concise statement of the law by a man who had a lifelong experience of practice in this Division": Lord Merrivale in Spivack v Spivack (1930) 46 TLR 243, 246.

58 I propose to refer, briefly, to some older cases which demonstrate the application of a presumption. 

59 In respect of Anglican marriages, it was decided that it was sufficient to prove simply the performance of a ceremony of marriage by a priest: e.g. R v Allison (1806) Russell & Ryan's Crown Cases 109.  This case involved a conviction for bigamy.  The sole evidence of the marriages came from single witnesses who had each attended one of the ceremonies which had taken place at a parish church.  The conviction was upheld.  It was not necessary to adduce evidence that any other necessary formality had been fulfilled. 

60 The same approach was in due course applied to a marriage in a Methodist Chapel: R v Manwaring (1856) Dearsly and Bell 132; 169 E.R. 948.  This case also involved a conviction for bigamy.  The judgments give differing reasons for upholding the conviction.  Once it was proved that there had been a ceremony of marriage in the presence of the registrar, the court would presume that everything had been done correctly, including, in particular, that the Chapel was duly registered.

61 The presumption was also applied in R v Cresswell (1876) LR 1 QBD 446.  In that case the marriage ceremony had been performed by a priest in a building near to the parish church which was in the process of being repaired.  Services had been conducted on several occasions in this building.  This was sufficient to justify the application of the presumption that all things were presumed to be have been done in due form. 

62 The same approach was also taken in respect of marriages performed by a priest in a Catholic Church: Sichel v Lambert (1863) 15 CB (NS) 781.  There was no evidence that the Church was licensed or that a registrar was present.  The existence of these two requirements was presumed.  In the course of his judgment Willes J said (at 788) that the provisions of the 1836 Act (section 42) were in accordance with the rule "that the marriage is good, if the parties bona fide intended to be and believed themselves to be united by a person having authority to perform the marriage ceremony".

63 A modern application of the presumption in favour of marriage is Chief Adjudication Officer v Bath [2000] 1 FLR 8, a decision on which Miss Proops relies heavily.  In that case a claim for a widow's pension had been refused on the basis that there was no evidence of a marriage having been solemnised in accordance with the provisions of the 1949 Act.  The claimant had gone through a ceremony of marriage with her deceased husband in a Sikh Temple in 1956.  They had lived together as a married couple until her husband's death in 1994.  The Social Security Commissioner allowed her appeal deciding that the "marriage" was validated by application of the common law presumption.  This decision was appealed on the basis that the social security appeal tribunal had found that the Temple was not registered for the solemnisation of marriages in 1956.

64 The Court of Appeal dismissed the appeal.   Evans LJ concluded that:

"[31] These authorities show that when a man and a woman have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form … the presumption operates to show that the proper form was observed and it can only be displaced by … positive not merely 'clear' evidence … How positive and how clear must depend among other things upon the strength of the evidence which gives rise to the presumption – primarily, the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife.

[32] I would agree with the Commissioners Decision R(G) 2/70 that when there is positive evidence that the statutory requirements were not complied with, then the presumption cannot be relied upon to establish that they were."

65 Evans LJ decided that the evidence was not sufficient to rebut the presumption.  Schiemann and Robert Walker LLJ agreed with this part of his judgment.  Evans LJ also decided that the fact that the Temple was not registered was of no effect. 

"[33] … There is no statutory provision that a marriage, otherwise carried out in proper form, by an authorised celebrant and at a place of worship eligible to be registered under the Act, is invalid merely on the ground that the building was not registered, for whatever reason.  The marriage was not void or invalid under the law in force before 1971 (see Halsbury's Laws (Butterworth's 4th Ed.) …) nor was it rendered void by s49 of the 1949 Act.

(Having quoted from Collett he then says:)
[35] The principle stated by Ormrod J is adopted in Halsbury, and there is no reference to any statutory provisions which might constrain the conclusion that the marriage is invalid if the place of worship where the ceremony is held is not registered".

66 Bodey J considered the application of the presumption of marriage in Al-Saedy v Musawi (Presumption of Marriage) [2011] 2 FLR 287.  He decided that a family gathering in a flat in London at which the parties entered into a religious agreement "never set out to be nor purported to be a 'bona fide ceremony' at all, in the sense of complying with the requirements of English law" [65].  He also decided that the parties could not have reasonably thought that any such ceremony satisfied the requirements of English law, [64].  As a result, he saw no place for the application of the presumption.

"[69] … It is a ceremony or event which the Respondent can show was not such as to satisfy the necessary formalities of an English marriage.  More than that, it so failed to set out to satisfy those formalities as not to have achieved the status of marriage at all in English law …"

In addition, he applied the dicta of Evans LJ from Bath (para. 32) that, where the statutory requirements are shown or admitted not to have been complied with, the presumption cannot be relied on to establish that they were.

Non-Marriages
67 There is a well-established line of authority to the effect that some ceremonies, even though they are or purport to be ceremonies of marriage, will not be sufficient to create even a void marriage.  In other words, they are ceremonies which are not capable of creating a marriage recognised under English law.

68 In R v Bham [1966] 1 QB 159 the defendant had been convicted of an offence under section 75(2)(a) of the 1949 Act because he had conducted an Islamic ceremony of marriage in a private house in England.  His appeal was allowed: at p. 168 C/E:

"… It does not seem to the court that the provisions of the Act have any relevance or application to a ceremony which is not and does not purport to be a marriage of the kind allowed by English domestic law ...  That this was a ceremony under the Islamic law admits of no doubt … But unless the "marriage" purporting to be solemnised under Islamic law is also a marriage of the kind allowed by English law it is not a marriage with which the Marriage Act 1949 is concerned …

(at p. 169B) What, in our judgment, was contemplated by this Act and its predecessors in dealing with marriage and its solemnisation, and that to which alone it applies, was the performing in England of a ceremony in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage. For the Act to have any application the ceremony, in our judgment, in agreement with Humphreys J and adopting certain of his words, "must be at least one which will prima facie confer the status of husband and wife on the two persons." Here it is acknowledged that the ceremony performed was not of that character in that it did not prima facie confer on them that status by English law and in our judgment it did not constitute the solemnisation of a marriage within the meaning of section 75(2)(a).'

In that case the prosecution acknowledged that the ceremony which had been conducted could not, wherever performed in England, have created more than a purported marriage, p. 165G/166D:

"… counsel for the Crown … addressed to the court no argument to suggest that … (the ceremony) … was a ceremony of marriage which could have been performed anywhere in England so as to produce a marriage valid by English law … Nor did he submit that there was any place of worship in England where it could have been performed or solemnised by reason of sections 26(1)(a) and 41 to 44 of the Marriage Act 1949, which regulate the solemnisation of marriages in registered buildings according to such form and ceremony as the persons to be married see fit to adopt.  On the contrary, he acknowledged that wherever performed in England this ceremony of nichan could never have been more than what he described as a purported marriage".

69 The court applied the decision of Humphreys J of R v Mohamed Ali reported in [1964] 2 QB 352 but decided in 1943, which dealt with section 39 of the Marriage Act 1836.  The defendant had conducted an Islamic ceremony of marriage and was prosecuted.  Humphreys J decided that there was no case to answer because, for the provisions of the Act to apply, the ceremony "must be at least one which will prima facie confer the status of husband and wife on the two persons".

70 Having regard to the way in which the Crown's case was presented to the Court of Criminal Appeal in R v Bham, this decision leaves open the question of when a marriage solemnised under Islamic law might also be a marriage "of the kind" allowed by English law or "in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage". 

71 In Gereis v Yagoub [1997] 1 FLR 854, the court had to determine the effect of a ceremony of marriage in a Coptic Orthodox Church.  The Church was not registered and the priest who performed the ceremony was not authorised.  It was decided that the ceremony was within the provisions of the 1949 Act but that it was a void marriage because both the parties had knowingly and wilfully married under the provisions of Part III of the 1949 Act without complying with the necessary formalities.  His Honour Judge Aglionby decided that the ceremony "gave all the appearance of and had the hallmarks of a marriage that would be recognised as a marriage but for the requirements of the Marriage Act" (page 858).  The ceremony bore the hallmarks of "an ordinary Christian marriage".

72 In A-M v A-M (Decree: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J (as he then was) had to determine whether the parties were validly married so as to enable the wife to bring proceedings for divorce or nullity.  One of the ceremonies which had taken place in that case was a ceremony of marriage in a flat in London which had been conducted by an Islamic Mufti from a London Mosque.  The ceremony was intended to be, and was, "a formal marriage by Islamic process".  Hughes J, applying R v Bham, found that the ceremony did not create a marriage (either valid or void) recognised by English law on the basis that the ceremony did not purport to be effected according to the Marriage Acts:

[55] Leaving aside, however, marriages contracted in foreign countries; the question which arises is what is and what is not a 'marriage', when contracted in England and Wales, for the purposes of s?11. Plainly it is not every event to which somebody seeks to apply the label 'marriage' which is within the section, leading to a decree of nullity and the open door to all forms of ancillary relief. Mr Posnansky did not submit otherwise. A clear example of what would be outside it might be a staged dramatic marriage 'ceremony' conducted in a play or in the course of a television soap opera. Another might be the exchange of promises between small children. But the same would apply, as it seems to me, to 'alternative marriage' rites consciously and deliberately conducted altogether outside the Marriage Acts and never intended or believed to create any recognisable marriage.

[56] Mr Posnansky for the wife submits that although it may be difficult to lay down in advance when an event is a 'marriage' for the purposes of s 11 and when it is not, the event presently in question, with its attendant ceremony, can safely be said to be within that expression.  If, however, it is, the same would no doubt apply to all manner of self-devised rituals intending to be binding in conscience by those forsaking the civil forms of marriage, as well as to 'marriages' according to foreign religions, and to any ceremonies which make no attempt to be English marriages within the Marriage Acts.

… (After referring to R v Bham, Hughes J continues)

[58] Although that was strictly a decision upon the Marriage Act 1949 rather than upon the Matrimonial Causes Act 1973, I am satisfied that the reasoning must apply to the latter and to the present case. In England a marriage can only be effected under the Marriage Acts, either according to the rites of the Church of England (Part II of the 1949 Act) or under certificate of the Superintendent Registrar (Part III). A marriage which purports to be conducted under these Acts may nevertheless be void for want of formality. Not every breach of the required formalities has this effect, but some do. They are set out in s?25 and 49 of the 1949 Act. But unless a marriage purports to be of the kind contemplated by the Marriage Acts, it is not, I hold, a marriage for the purposes of s?11 of the Matrimonial Causes Act 1973. No doubt it is possible to envisage cases where the question whether a particular ceremony or other event does or does not purport to be a marriage of the kind contemplated by the Marriage Acts is a fine one. Gereis v Yagoub [1997] 1 FLR 854 was one such, where His Honour Judge Aglionby concluded that but for the absence of notice to the superintendent registrar and the lack of registration of the building the ceremony would have been one valid in English law; the decision may have been a merciful one. It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal defects. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar's certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts. Just as in Regina v Bham [1966] 1 QB 159, nobody purported to conduct or take part in a Marriage Act 1949 ceremony, and the fact that no one applied their mind to how English law would view what they did does not alter that conclusion. It is not any question of polygamy which ipso facto takes this ceremony outside s?11, but the fact that it in no sense purported to be effected according to the Marriage Acts, which provide for the only way of marrying in England. The fact that the husband was known by all concerned to have another existing wife is of course one important reason why this was so. It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity."

73 In Gandhi v Patel [2002] 1 FLR 603 the relevant ceremony had been a Hindu ceremony of marriage conducted by a Brahmin priest at a restaurant in London.  Park J decided, following A-M, that:

[31] … The Hindu ceremony did not give rise to a 'void marriage'.  Rather it created something which was not a marriage of any kind at all, not even a marriage which was void.  It might be described as a 'non-marriage' rather than a void marriage".

(And later)

[45] … In the present case the Hindu ceremony … purported to be a marriage according to a foreign religion, and it made no attempt to be an English marriage within the Marriage Acts".

74 In Cretney and Probert's Family Law 7th Ed. p. 36 these cases prompt the comment: "Whilst it is sensible for non-compliance to be a matter of degree, it would be indefensible for a Sikh or Muslim marriage to be struck down in circumstances in which a Christian marriage would be upheld".

75 In Burns v Burns [2008] 1 FLR 813 the ceremony had taken place in a hot air balloon in California.  The parties had not obtained the necessary licence before the ceremony so that it was not valid under Californian law.  Coleridge J rejected an argument that the ceremony created a non-marriage.  The ceremony as a ceremony complied with the local requirements.  It was "nowhere near to the category of cases where the marriage can be described as a non-marriage" [48].

76 In AAA v Ash, Registrar for England and Wales [2010] 1 FLR 1, it appears to have been accepted that an Islamic ceremony of marriage in a Mosque in England did not create a valid marriage under English law.  There was, accordingly, no analysis of the issues.

77 In Hudson v Leigh [2009] 2 FLR 1129, Bodey J had to determine the effect of a ceremony in South Africa which the parties had deliberately intended would not be a valid ceremony of marriage.  The concept of 'non-marriage' was specifically challenged in the case by counsel for the 'wife'.  Bodey J decided that there was such a concept and that the ceremony in that case was to that effect. 

78 In the course of his judgment, Bodey J refers to Joseph Jackson's "seminal book" The Formation and Annulment of Marriage (2nd Ed. 1969) in which it is said, (at p. 85/86):

"… The question whether a marriage is void, voidable or valid presupposes the existence of an act allegedly creative of a marriage status."

Bodey J concluded, after a careful analysis of the authorities, that it would be "unrealistic and illogical to conclude that there is no such a concept as a ceremony or event which, whilst having marriage-like characteristics, fails in law to effect a marriage" [70].  He decided that the "positive intention of all three key participants not to perform or effect a marriage, takes this case outside the intended scope of s 12(c) of the (Matrimonial Causes) Act …". 

79 Towards the end of his judgment Bodey J considered whether it was possible or sensible to seek to define or set out a test for a 'non-marriage'.  He decided that it was not.

[77] I am unconvinced that there is or can be any satisfactory definition to cover this sort of situation, for convenience described in shorthand as a 'non-marriage' or a 'non-existent marriage'. Various formulations have been mentioned en route to decisions reached on a case specific-basis, for example: (a) whether a given ceremony would: '… prima facie confer the status of husband and wife on the two persons' (R v Bham); or (b) whether it: 'bore the appearances and hallmarks of a marriage and was assumed by the guests to be an ordinary Christian marriage' (Gereis v Yagoub); or (c) whether it: '… purported to be a marriage according to the Marriage Act' (A-M); and/or (d) whether it was: '… deliberately conducted outside the Marriage Acts and never intended or believed to create any recognisable marriage' (A-M again).

[78]   Having regard to the wide range of potential factual situations, there would be difficulties with any of these possible formulations, if they were regarded (as they were clearly not intended to be) as attempts to state definitively the circumstances when something which looks like a marriage should fail in law to be one. Reliance on the 'hallmarks of marriage' alone may not in all circumstances be a satisfactory test, as it would not in fact be here. The ascertainment of intentions and beliefs will often be difficult and unreliable and their use alone could run into the problem of different participants in or at the ceremony intending and believing different things, as occurred here amongst the guests, although not as between the three main participants. Reliance, as per Mr Le Grice's suggestion, on the assumed perception of 'the reasonable guest' is problematic, since it involves a fiction and begs many of the same questions as the 'hallmarks' test. Mr Mostyn's proffered definition, although a valiant effort, appears to be built specifically around the facts of this case and may fail adequately to deal with future circumstances as yet unforeseen.

[79]   In the result, it is not, in my view, either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached."

80 Bodey J returned to the issue in Al-Saedy v Musawi and again in El Gamal v Al Maktoum [2011] EWHC 3763 (Fam).  In the latter case, Bodey J had to consider the effect of an Islamic ceremony of marriage which was alleged to have been conducted by an Imam in a flat in London.  He rejected the mother's evidence that she believed the ceremony would create a valid marriage and rejected the submission, at [86],

"… that the parties' belief or intent that a ceremony would be valid can serve to convert something which, on the above authorities, would otherwise have been a 'non-marriage' into a (void) marriage. I have no doubt that intention is relevant to the status achieved or not achieved by a questionable ceremony, as being one of the many considerations which need to be taken into account. It is particularly relevant in the presumably unusual circumstances where the parties did not intend to create a valid marriage, or where they realised that for some reason they would not be able to do so. But the converse does not apply. It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nevertheless suffices if the participants hopefully intended, or believed, that the ceremony would create one.

[87]   When I asked Mr Todd what he could say the parties had done to comply with the Marriage Acts (i.e. what they had done to arrange or participate in a ceremony which set out or purported so to comply) he was only able to say that they:

(a) had an Imam; and
(b) had two witnesses; and
(c) intended that it should be valid.

In my judgment, that amounts to nothing done by the parties to show an attempt to be part of a ceremony set up to or purporting to comply with the formal requirements of English law. In such circumstances, there exists nothing here in English law susceptible to a decree of nullity under s 11 of the MCA. There was a wholesale failure to comply with the formal requirements of English law. This was not, as submitted, a void marriage but was, in shorthand, a 'non-marriage'".

81 In Dukali v Lamrani [2012] EWHC 1748 (Fam), the ceremony with which the court was concerned was a ceremony conducted at the Moroccan Consulate in London between two Moroccan nationals.  The Consulate considered that the ceremony created a valid marriage.  Holman J decided that the position was the same as in Al-Saedy.  Accordingly, the marriage was "non-existent" under English law as "it did not even purport to be a marriage under the provisions of the Marriage Acts" having regard to the failure to comply with the requirements as to "notification, use of a registered or approved venue, form, authorisation of the officiant and subsequent registration" [36].

Conclusions
82 In my judgment, the central issue is whether what took place in this case is sufficiently within the 1949 Act for the marriage to be capable of being a valid marriage under English law.  As Bodey J identified in Hudson v Leigh the approach to whether a given ceremony has resulted in a non-marriage has been formulated in a number of different ways.  Is the marriage "of the kind" permitted by English law or "in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage"?  Was it, per Collett, a ceremony which, "as a ceremony, would be sufficient to constitute a valid marriage"?  If it was, what is the effect of the failure to comply with some of the statutory requirements?

83 I have come to this conclusion because, despite the submissions of Miss Proops, I do not consider that the presumption of marriage can be applied in this case so as to enable me to find that all the necessary requirements were fulfilled.  The evidence clearly establishes, as is accepted, that some of the requirements of the Act were not fulfilled – notably, the failure to give notice to the registrar and, as a result, the marriage being solemnised without any certificate having been issued.  It is an evidential presumption and as such can be rebutted.  As was said by Evans LJ in Bath, "when there is positive evidence that the statutory requirements were not complied with, then the presumption cannot be relied upon to establish that they were".  There is clear and compelling positive evidence to that effect in the present case and accordingly, in my judgment, the presumption cannot be relied upon to establish that the relevant missing statutory requirements were fulfilled.

84 This leaves Miss Proops' alternative submission that the ceremony of marriage in this case was in its character "of the kind contemplated by the Act" and created a potentially valid marriage, not a "non-marriage" as is submitted on behalf of the Attorney General.  Was the ceremony in this case one which was potentially within the scope of the 1949 Act – was it a ceremony of the kind permitted by English law; was it one which was capable of producing a valid marriage?

85 I agree with Bodey J in Hudson v Leigh that it is neither possible nor sensible to seek to set out a definitive test for determining whether a ceremony results in a 'non-marriage' or results in a marriage potentially valid within the 1949 Act.  He sets out some of the factors relevant to the issue including whether the ceremony bore all or enough of the "hallmarks of marriage".  What are the hallmarks of marriage or, to quote again from R v Bham when is a ceremony "in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage"?  When does a ceremony purport to be within the 1949 Act?

86 It might be thought that these questions would be susceptible of a simple answer.  However, as was identified in the Law Commission Report on Solemnization of Marriage in England and Wales, EWLC 53 (1973), Annex para 120, after quoting from R v Bham:

"Unfortunately, the Act gives little indication of what are the minimum requirements of a "form known to and recognised by our law … as capable of producing … a valid marriage".

That comment remains true.
 
87 The Law Commission also commented on what was referred to as a "growing mischief – namely, the deliberate solemnisation of invalid marriages" (para. 136).  I believe 'deliberate' was used in the sense that the manner in which the marriage was solemnised was deliberate, rather than that there was a deliberate intent to contract an invalid marriage, although, of course, the latter could also occur.  Concern was expressed that in many cases "both parties, and probably the bride in nearly all of them, think that a proper marriage has been contracted and enter into cohabitation in that belief".  I do not know the extent to which this is still true (although the recent authorities referred to above might suggest that it is a not uncommon issue) but, as referred to earlier in this judgment, in my view there is a public interest in marriages which have been contracted in England resulting in the obligations and rights consequent on marriage (including a void marriage) being imposed on and afforded to the parties to such marriages.  Further, I consider there is a significant obligation on those solemnising marriages which might fall within the scope of the 1949 Act to adhere to its requirements.  The penal provisions of the Act make clear the nature of this obligation. 

88 In Collett Ormrod J had to decide whether there had been a valid marriage under the provisions of the Foreign Marriage Act 1892.  The facts of that case are instructive.  The ceremony had taken place in Prague in 1948.  The parties had agreed to marry but as the wife was leaving the country she was detained by the Communist authorities and interrogated for several hours.  She was released on condition that she returned to the Ministry of the Interior the next morning.  As Ormrod J says, "hurried arrangements" were made for the parties to be married.  The ceremony took place in the presence of the authorised person (the marriage officer who was the ambassador), in the authorised premises (being the official house of the ambassador, namely the consulate) and the parties had exchanged the requisite declarations.  Ormrod J decided that, "the actual ceremony of marriage was properly performed and was in all essentials a marriage", p. 489 G.  Due to the evident urgency, among other defects, none of the notice requirements were fulfilled and the marriage was not registered.  An informal certificate was provided by the priest who had officiated.


89 In the course of his judgment Ormrod J considered the "general approach of English law to the question of the formal validity of a marriage", at 491 F:

"The control of the formation of marriage in this country has a long statutory history, much of it intended to prevent clandestine marriages.  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."

He then refers to section 22 of the Marriage Act 1823, section 42 of the Marriage Act 1836 (which deal with when a marriage is void) and Wright v Elwood.  I have already referred to the principle which Ormrod J took from the legislation and reported cases, namely that if a ceremony "as a ceremony" was sufficient to constitute a valid marriage, the courts will find it valid unless constrained by express statutory enactment to hold otherwise.

90 This does not mean that any form of ceremony will be sufficient.  In an earlier decision, Kalinowska v Kalinowska (1964) Sol Jo 260, Ormrod J had used stark language to explain the need for there to have been a ceremony which would be sufficient as a ceremony to constitute a valid marriage:

"it must be shown that the ceremony through which the parties went prima facie gave rise to a valid marriage by the lex loci celebrationis … (otherwise it) would mean that proof of some ceremony, however bizarre, coupled with evidence of cohabitation would give rise to an almost irrefutable presumption that there was a valid marriage".

91 In Collett, applying the principles he had identified, Ormrod J decided that most of the provisions of the 1892 Act contained directory rather than mandatory provisions.  These included the giving of notice, the filing and entering of such notice, the taking of an oath and the registration of the marriage.  The crucial provisions were those which dealt with the solemnisation of the marriage.   Section 1 provides that all marriages "solemnised in the manner in this Act" are valid and the only section which deals with solemnisation is section 8(2). Ormrod found that all the requirements of this sub-section had been fulfilled: place, time, presence of witnesses, solemnised by marriage officer.  This was so even though section 8(1) required 14 days to elapse between notice of an intended marriage and the marriage being solemnised.

92 The approach taken by Ormrod J in Collett cannot be applied directly to the 1949 Act because the structure of this Act is different to the 1892 Act.  In particular there is no provision similar to that set out in section 1 of the 1892 Act.  There is also no clear route to identifying which requirements are 'essential' for a ceremony to be within the scope of the 1949 Act.  Indeed, the 1949 Act only stipulates those failures which will not affect the validity of a marriage and those failures which will result in a marriage being void.  As was pointed out by the Law Commission (para. 120), "Unfortunately these two classes do not cover the whole ground.  There are some requirements of the Act which are not included in either".  Further, if the failures expressly covered by the 1949 Act have the consequence stipulated, it is difficult to see how they can also cause a ceremony to create a 'non-marriage'.  This could certainly not be the consequence of those failures which the 1949 Act expressly provides will not affect the validity of the marriage.  It is also difficult to see how this could be the consequence of a failure to comply with those requirements which the Act expressly provides will result in a void marriage.  A non-marriage is, by definition, a marriage which is the product of a ceremony which is wholly outside the scope of the 1949 Act.  This brings me back to the question of what brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act.

93 Could the hallmarks, which bring a ceremony within the 1949 Act, be merely, "the formal exchange of voluntary consents to take one another for husband and wife", referred to Ormrod J as being, the "essence of marriage"?  This echoes the well-known statement in Hyde v Hyde and Woodmansee [1866] LR 1 PD 130, at 133, that marriage may be defined as "the voluntary union for life of one man and one woman, to the exclusion of all others".  This would surely be too wide a test as it could result in almost any form of ceremony being sufficient, wherever and however conducted.

94 Nevertheless, given that section 44 of the 1949 Act permits the parties to adopt "such form and ceremony" as they "see fit", the actual requirements of the ceremony itself are confined to those set out in section 44(3) or (3A).  I have been referred to no case in which a failure to comply with these requirements has resulted in the marriage being void or being treated as a non-marriage when the other provisions of the 1949 Act have been fulfilled.  In Hill v Hill [1959] 1 WLR 127, the Privy Council decided that a failure to comply literally with a similar provision in the Marriage Act 1904 – 1909 of Barbados, which governed marriages solemnised by a Christian minister, did not invalidate the marriage.  What must be made clear was that "each party intended to contract a Christian marriage and there must be in the service passages which make plain the necessity for the absence of lawful impediment and the taking of one another to be the lawful wedded wife or husband", p. 132.  This approach is also consistent with the authorities referred to earlier in this judgment to the effect that a marriage is not a nullity "if the Act did not expressly create a nullity".

95 I acknowledge the public interest in clarity given the importance and consequences for the parties and the State of the status of marriage being achieved, as submitted by Mr Gupta.  This supports the conclusion that the 1949 Act net should not be cast too widely.  However, I do not accept his submission that the public interest is such that the making of a declaration in this case would be "manifestly contrary to public policy" as set out in section 58(1) of the Family Law Act 1986.  Indeed, as expressed earlier in this judgment, in my view it is in the public interest that the rights and obligations consequent on marriage are provided to and imposed on those who "marry" in this jurisdiction.  It is not in the public interest that such obligations can be too readily avoided.  This supports the conclusion that the 1949 Act net should not be cast too narrowly.

96 Further, the public policy considerations do not directly address the issue of when a ceremony is potentially within the 1949 Act, save to the extent that the greater the departure from the 1949 Act, the more powerful the argument that the ceremony is one wholly outside its provisions.  In my judgment, the answer to the question of when a ceremony in England is not wholly outside the provisions of the 1949 Act and will accordingly create a potentially valid marriage should be determined by reference to the provisions of the 1949 Act applied in a manner which is consistent with the principles summarised by Ormrod J in Collett and taking into account the factors referred to by Bodey J in Hudson v Leigh.

97 It is clear in the present case that the parties intended to contract a marriage which is valid under English law.  The Imam thought that he was "only" conducting a religious ceremony but he did not discuss this with anyone else, including the parties or the Chairman of the Mosque.  The Chairman, an authorised person, was present and, indeed, acted as a witness.  I have not heard evidence from him but there is nothing to suggest that he did not consider that the parties were contracting a valid marriage in accordance with what he had told the Petitioner.  Even if he too considered that what was being performed was "only" a religious ceremony, I would not consider this would have any material effect on my decision in this case.  The parties were still intending to contract a valid marriage.  However, I agree with Bodey J that intention alone is unlikely to be sufficient to make a marriage potentially valid under English law.

98 In addition in this case, the ceremony which took place was sufficient "as a ceremony" to constitute a valid marriage.  The fact that the ceremony was conducted according to Islamic Sharia does not mean that the ceremony "as a ceremony" could not be within the scope of the 1949 Act.  As referred to above, parties are permitted to adopt such form or ceremony as they "see fit to adopt".  The ceremony in this case was clearly a ceremony of marriage.  It was made plain that the parties were taking one another as wife and husband.  If necessary, it was also made plain that there was no lawful impediment to their marriage.   I say, if necessary, because it is by no means clear that a failure to comply with this requirement would render a marriage void.

99 Under the 1949 Act a marriage can be solemnised in an Anglican church by a clergyman; in a registered building (being a certified place of worship) in the presence of an authorised person or registrar; in approved premises in the presence of a registrar.  The essential elements are the place of the ceremony and the presence of one of the designated officials.  It is these elements which have been sufficient to justify the application of the presumption in favour of marriage.  As explained above, the application of the presumption must be based on the marriage being capable of having been a valid marriage.  In addition to the factors referred to in paragraphs 97 and 98, the marriage in this case was solemnised in a registered building and in the presence of an authorised person.

100 The parties failed to give notice to the superintendent registrar and there was no certificate.  There is no statutory provision which results in a marriage being void because it was solemnised without notice or certificate, but is otherwise within the scope of the 1949 Act, unless the parties knowingly and wilfully married without having complied with these requirements.   It is clear from, for example, Wright v Elwood and Greaves v Greaves that the failure to comply with the preliminaries – the publication of banns or obtaining a licence - does not, by itself, affect the validity of a marriage.  Such a failure will only result in the marriage being void if the failure is deliberate, in the sense that the parties are knowingly aware of the failure: Dormer v Williams and Greaves v Greaves.  Further, it is clear that the failure to give notice or obtain a certificate do not prevent a marriage from being within the scope of the 1949 Act.

101 Accordingly, in my judgment, the ceremony of marriage in this case was within the scope of the 1949 Act.  It was a ceremony of marriage conducted in a registered building in the presence of an authorised person.  It was "of the kind" permitted by English law and in a form capable of producing a valid marriage.  In my view, what Ormrod J said about the ceremony in Collett, namely "the actual ceremony of marriage was properly performed and was in all essentials a marriage", is equally applicable to the ceremony which took place in this case.  The ceremony therefore created a potentially valid marriage.

102 The next question is whether the marriage is in fact valid or is void.  Applying the approach which has been maintained since the beginning of the 19th century, a marriage will only be held to be void if this is expressly provided by the statute.  The relevant provision is section 49 of the 1949 Act.  Because the parties did not knowingly and wilfully marry in breach of the requirements of the Act as specified in section 49 (essentially notice and certificate) the marriage is not void. 

103 Accordingly, in my judgment, the ceremony in this case created a marriage which is entitled to be recognised as valid under English law.  Further, in the circumstances of this case, the Petitioner and Respondent are entitled to the declaration they seek.