A fine ceremony but no marriage… Part 2

 

Modern divorce and the Marriage Acts

 

In Part 1 of this two post series, I pointed out that – as ever – to be divorced you must be married. For a variety of rights, a marriage must be proved. I looked at this issue in the context of HM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020) which had been reported a couple of days before my post. The case consigns another group of racially diverse couples to the lottery – relative to Matrimonial Causes Act 1973 (MCA 1973) principles – of cohabitation law on relationship breakdown.

 

We have a Divorce, Dissolution and Separation Bill which is making its way through Parliament. It will amend MCA 1973. It will remain English law that a marriage (or civil partnership) and its dissolution will lead the parties, as of right, into the assembled financial remedies available under MCA 1973 and Civil Partnership Act 2004. The same remedies are not available to those who live together even though they may have gone through a ceremony which, according to their own religion or customs, treats them as marriage.

 

In AG v Akhter the Court of Appeal went back to the Marriage Acts (recalling the analysis set out by Moylan J (the same judge, and as he then was) in A v A (below)). They traced what the ceremony in law which defines marriage, and then asked where marriage law left the parties on the facts in this case. Nasreen Akhter is not married to Mr Khan – not even ‘non-married’ as Williams J had held.

 

This has consequences not only in matrimonial law, but also in some areas such as inheritance law and administrative law (benefits etc); and those consequences apply not only for Mrs Akhter but to many other is her position.

 

First it is necessary to define what is and is not marriage. As far as the present divorce reform bill is concerned, nullity stays as in Matrimonial Causes Act 1973; though it remains to be seen whether rules will provide that a spouse against whom irretrievable breakdown (the proposed amended MCA 1973 s 1) is alleged wishes to assert nullity as a basis for ending the marriage; or that marital status is in issue under Family Law Act 1986 s 55 (as now).

 

Within or outside the Matrimonial Causes Act 1973 pale

 

Divorce may be simplified by the proposed divorce reform bill; but the fact is that there is a growing proportion of contested family breakdown cases which are dealt with by family courts on grounds other than divorce. They are outside protection of the MCA 1973 pale. Many forms of financial provision depend of whether or not spouses are married (and mostly if will be the wife who is at a disadvantage): benefits claims, insurance, intestacy, claims under Inheritance (Provision for Family and Dependants) Act 1975 (claims to the estate of a dead spouse) under the 1973 Act. And this is so even though a wife may have thought throughout her ‘married’ life that she was validly married in English law to the man she lived with, and the father of her children.

 

In many such cases, the issue – as in Attorney-General v Akhter – is there a marriage at all? Inception of marriage (or not) can be categorised as follows:

 

• (1) A valid marriage is one celebrated in accordance with Marriage Act 1949; or sufficiently within the terms of the 1949 Act for the marriage to be recognised as valid (Collett v Collett(above); A v A (Attorney-General intervening) [2012] EWHC 2219 Fam, [2013] Fam 51, Moylan J (also as MA v JA)). This confers on spouses the rights which accompany marriage: eg tax benefits, entitlement to pensions, inheritance advantages etc. On breakdown of a marriage parties are entitled to seek financial provision under MCA 1973 Pt II.

 

• (2) A marriage may be voidable or void. This happens occurs where a couple have not complied with requirements of a valid marriage (as considered further at MCA 1973 ss 11 and 12). Their union may be annulled as being a marriage which is void (the marriage is treated as not having taken place, save for MCA 1973 Pt 2 financial relief claims); or it is voidable (married till avoided). It will be open to either to apply for MCA 1973 financial provision; and they will be able to divide their assets or deal with maintenance.

 

• (3) Presumed marriage – even though formalities may not have been complied with the couple will be presumed married where validity of a couple’s marriage can be presumed by a form of ceremony and ‘cohabitation as a married couple for a substantial period of years’ (Chief Adjudication Officer v Bath [2000] 1 FLR 8, CA; Hayatleh v Modfy [2017] EWCA Civ 70).

 

Marriage Act 1949

 

The Marriage Act 1949 Part I deals with restrictions on marriage (ie capacity); Part II deals with marriage according to the rites of the Church of England; and Part III deals with marriage under a superintendent registrar’s certificate. In Part I, s 1 (prohibited degrees) and s 2 (persons under 16) state expressly that non-compliance makes a marriage void. Section 3 requires parental consent (unless dispensed with) to the marriage under Part III of a person under full age, but s 48(1)(b) makes plain that non-compliance does not invalidate a marriage. Sections 25 and 49 state expressly that a marriage is void if the parties to it ‘knowingly and wilfully intermarry’ in contravention of the requirements specified in those respective sections. A marriage which does not comply with s 49 is void, but only where ‘knowingly and wilfully’ undertaken (see eg A v A (above) and CAO v Bath (above).

 

A marriage is void under Marriage Act 1949 where it does not comply with one or more of the celebration of marriage conditions in s 49 which include: ‘(a) without having given due notice of marriage to the superintendent registrar’, and ‘(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’. Consolidated 1949 (ie much older than that date suggests), MA 1949, at least 20 years older than DRA 1969, is surely much more due for reform that our divorce laws?

 

Marriage: valid, presumed, void – or ‘non-marriage’…

 

The cases cited above testify to the importance of the validity of a marriage in different contexts. Each shows the judiciary adopting a purposive approach to the question of whether a marriage is valid, can be presumed or is void. A void marriage brings the couple within the financial provisions of MCA 1973 Pt 2. A non-qualifying ceremony leaves the couple – and their children – outside the 1973 Act.

 

CAO v Bath (above) arose when Mrs Bath claimed widow’s benefit after a marriage of nearly 40 years. The DSS refused payment. It was said the couple were not married. The Court of Appeal upheld earlier tribunal and commissioner’s decisions over the Department’s appeals. As had done the Commissioner below, they found that a presumption of marriage applied where a couple had lived together where statute did not deny the existence of a marriage.

 

A v A (above) found that though elements of the couple’s Islamic marriage did not comply in full with statutory requirements of MA 1949, their ceremony was sufficient to bring the marriage within the scope of the 1949 Act (see [100]). The marriage should only be declared void – the couple sought a FLA 1986 s 55 declaration – if statute positively said that it should be so regarded. Moylan J explained this: ‘[102] 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 (see MA 1949 s 49). Because the parties did not knowingly and wilfully marry in breach of the requirements of the [1949 Act] the marriage is not void.’ This couple seems to have applied under s 55 and in the context of divorce proceedings (see below).

 

Procedure for establishing, or not, the validity of a marriage

 

So how does a party, for whatever reason, establish validity, or not, of a marriage? Two main routes are available under the law as it now stands.

 

• An answer to a MCA 1973 petition (though this route will not be easily available under the new divorce bill); and
• An application for a declaration of marital status under Family Law Act 1986 s 55.

 

It remains to be seen how the rule makers deal with (1) when the new divorce reform bill comes into effect. Family Law Act 1986 s 55(1) provides for a variety of bases for dealing with marital status including: that the marriage was valid at its inception (s 55(1)(a)); that it was valid from a later date (s 55(1)(b)); that it ‘did not subsist’ (s 55(1)(c)); or that a foreign divorce is or is not entitled to recognition (s 55(1)(d) and (e)). In A v A the case proceeded, successfully, under s 55(1)(a) (with both spouses supporting the claim; though also seeking a MCA 1973 remedy afterwards). The issue may be raised and determined in an administrative tribunal (First-tier Tribunal with appeal to Upper Tribunal as is now the law: Tribunals, Courts and Enforcement Act 2007). This was the basis of the Court of Appeal being involved with Mrs Bath in CAO v Bath under the then appeals structure of DSS appeals.

 

There will be many cases in today’s secular and multi-cultural society that demand a decision on whether there was a marriage or civil partnership at all – for divorce (or nullity), pension, immigration or other purposes; and this will be before any question of divorce can be considered. Whether the marriage issue is resolved in FLA 1986 s 55 declaration, MCA 1973 (divorce nullity etc) or administrative tribunal proceedings will depend on the personal circumstances of the couple concerned and why the existence of a marriage (or not) needs to be determined.

 

Divorce law reform is needed; but our law needs also to look at the more diverse – and complex, as the common law and marriage laws have made it – question of what is a marriage. Divorce by any process (the one we have now or another under any new Act) is still a divorce. The benefits to a spouse under MCA 1973 are all there. If you are not married – though you thought you were by the ceremony performed to wed you – no amount of law, at present, will provide you with the benefits available on divorce or otherwise to formerly married spouses.

 

David Burrows

2 March 2020

 

A fine ceremony but no marriage… Part 1

Status and marriage

 

To be divorced you must be married. To secure a variety of rights marriage may need to be proved. So what constitutes marriage; and what the lesser cohabitant status. The formal – and less formal – family cohabitation of couples consists of:

 

• Married and civil partnered couples
• Couples who cohabit without and formal link or ceremony (cohabitants or ‘cohabs’)
• Couples who were married, but whose marriage is avoided (void or voidable) under Matrimonial Causes Act 1973 (MCA 1973) ss 11 and 12 (eg because one party is a bigamist, or a marriage is not consummated)
• Couples who cohabit after what may be called a ‘non-qualifying ceremony’ of ‘marriage’ (see Akhter (below) at [7] and [64]: formerly known – inaccurately said the Court of Appeal – as a ‘non-marriage’), many of whom may regard themselves as married under their own custom or faith

 

It is the last group (ie (4)) with which HM Attorney General v Akhter & anor [2020] EWCA Civ 122 (14 February 2020) was concerned. It was an appeal from Akhter v Khan & Attorney-General [2018] EWFC 54, [2019] Fam 247 (31 July 2018), Williams J. The Court of Appeal allowed the Attorney-General’s appeal; though by the time it reached the court the couple in the case had settled (on what terms, the report does not say).

 

Judgement was by the court (Sir Thomas Etherton MR, King and Moylan LJJ). The issues raised, said the judges were two ([5]):

 

• Whether there were ceremonies like marriage (in UK law), but which do not create a marriage but which is in a form which can then be avoided under MCA 1973 s 11; and
• If so, whether there was between these parties a ‘non-qualifying ceremony’; or was there such a marriage sufficient for the court to declare void, as Williams J had done?

 

The answer to these questions is no; but since this turns on what is a ceremony of marriage the important prior question: is what did the court say about formation of marriage since this question must logically precede the question of whether there is any marriage to dissolve or avoid (annul).

 

The background to this case will be summarised in this post, and the marriage question be considered in a later post.

 

Marital status: private and public law rights

 

Marriage creates status, from which flow a variety of administrative and private law rights and obligations; or as the court put it:

 

[28] [The importance of marital status] as a matter of law derives from the significant legal rights and obligations it creates. It engages both the private interests of the parties to the marriage and the interests of the state. It is clearly in the private interests of the parties that they can prove that they are legally married and that they are, therefore, entitled to the rights consequent on their being married. It is also in the interests of the state that the creation of the status is both clearly defined and protected. The protection of the status of marriage includes such issues as forced marriages and “sham” marriages.

 

The couple had an Islamic ceremony. They knew this was, on its own, of no legal effect, said the court. It was to have been followed by a civil ceremony compliant with English law, but this did not happen. Williams J found sufficient of a marriage for him to conclude that it came within scope for him to anull under MCA 1973 s 11(a)(iii). This would give the wife, Nasreen Akhter, rights to financial relief under MCA 1973. However, as the Court of Appeal pointed out: a void marriage is a contradiction in terms: ‘[46] … It has no legal effect on the status of the parties. A decree of nullity could, therefore, be said to be only declaratory because it does not make the marriage void.’

 

Williams J had held that the marriage was void; for he said, by MCA 1973 s 11(a)(iii) ‘the parties have intermarried in disregard of certain requirements as to the formation of marriage…’ because their marriage was not valid ‘under the provisions of the Marriage Acts 1949 to 1986’.

 

Marriage Acts

 

The Court of Appeal went back to the Marriage Acts (recalling the analysis set out by Moylan J (ahtw) in A v A (Attorney General intervening) [2012] EWHC 2219 (Fam), [2013] Fam 51 sub nom MA v JA and the Attorney-General) [2013] 2 FLR 68). They traced what the ceremony in law which defines marriage, and then asked where marriage law left the parties on the facts in this case.

 

Nasreen Akhter is not married to Mr Khan. This has consequences not only in matrimonial law, but also in some areas as inheritance law and administrative law (benefits etc). But first it is necessary to define what is and is not marriage. As far as the present divorce reform bill is concerned, nullity remains as in Matrimonial Causes Act 1973; though it remains to be seen whether rules will provide that a spouse against whom irretrievable breakdown (cl 1 of bill) is alleged wishes to assert nullity as a basis for ending the marriage; or that marital status is in issue under Family Law Act 1986 s 55 (as now).

 

As the law stands people in Nasreen Akhter’s position will be firmly in category (2) above, with all the shortage of rights (almost none outside Inheritance (Provision for Family and Dependants) Act 1975 on her cohabitant’s death and under trust law) which that implies. The next step here is to write a modern summary of marriage law derived from this case and the statutory sources.

 

David Burrows

16 February 2020