The evolving concept of ‘non-marriage’
Some years ago, the local amateur dramatic society put on a production of J.B. Priestley’s When We Are Married. One enthusiastic actor had an unfortunate tendency to anticipate his cues, jumping in with ‘Does that mean we’re not married?’ several pages too early. The rest of the cast grimly readjusted their lines, and the show carried on – to the bafflement of most of the audience, unable to detect in the events before them anything that might cast doubt on the marriages in question. ‘Only ten minutes short tonight!’, said the producer as we filed out. A play, of course, can be cut, relocated and recast while remaining recognisable (if not always comprehensible). But is the same true of a wedding? What are the minimum requirements in order for a ceremony to have recognition as creating a legal marriage? When, in short, are we married?
The question has acquired some urgency in the wake of a spate of recent cases in which the courts have debated the concept of the ‘non-marriage’. As a number of judges have noted, the conceptual distinction between a marriage that is void, and one that is non-existent, is difficult to fathom. In practical terms, though, the difference is stark: when declaring a marriage void under the Matrimonial Causes Act 1973 the courts have the same powers to make financial orders as when granting a divorce, but when holding a union to be a ‘non-marriage’ they have no such powers and the legal rights of the parties are the same as if they had never gone through a ceremony at all.
As result, holding a union to be a non-marriage is not a decision that should be taken lightly. In recent years, however, the courts have been more willing to resort to this option. Four of the cases that resulted in non-marriages involved Islamic ceremonies of marriage: one that took place in the Moroccan consulate, a second in a hotel, and two more whose very existence was disputed but which were decided on the basis that some ceremony had taken place in a private flat. A fifth non-marriage was the result of a civil ceremony that was actually the second ceremony of marriage that particular couple had gone through. The concept of a ‘non-marriage’ has also been extended beyond its original context of cases where the bride and groom had innocently failed to comply with the formalities to deal with certain types of forced marriages, unions where one party lacks capacity, and indeed any marriage that the courts feel should not be recognised for policy reasons. The concept is thus evolving in a number of different directions.
If any area of the law should be simple and certain, it is that governing entry into marriage. At present this is far from being the case. As the Law Commission commented over almost forty years ago, “the law is not understood by members of the public or even by all those who have to administer it.” This is borne out by those recent cases in which the relevant authorities were either unaware of, or failed to alert the couple to, the relevant legal requirements. In addition, an undesirable level of judicial discretion operates at the boundary between marriage and non-marriage. Rather than laying down clear guidelines, the courts have preferred a case-by-case approach taking into account a range of factors and evaluating the intentions of the parties as well as the nature of the ceremony undertaken.
But the fact that the ‘non-marriage’ is – as explained below – a judicial creation does not mean that its scope cannot be delimited by the terms of the legislation governing marriage. The terms of the Marriage Act 1949 in fact offer a way forward that does not depend on making a discretionary judgment about the nature of the ceremony. After explaining how and why the concept of ‘non-marriage’ evolved, and how the courts have tried to define the boundary between it and a marriage that is either valid or void, the neglected words of...