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.
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Her Majesty's Attorney General
The Respondent appeared in person
Mr Gupta QC (instructed by the Treasury Solicitor) for the Intervener
Crown Copyright ©
The Hon Mr Justice Moylan :
(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.
"1. On the [a date in] 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."
The Parties' Submissions
"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".
The Statutory Framework
The Marriage Act 1949 ("the Act")
"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."
"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 …".
"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 …
(e) 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 …"
"(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".
"(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
"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."
"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."
"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.
" … 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."
"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.
"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 …".
" 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.
 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."
" … 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:)
 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".
" … 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.
"… 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".
 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.
 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)
 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  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  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."
 … 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".
 … 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".
"… 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" . 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 …".
 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).
 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.
 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."
"… 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.
 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'".
"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.
"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.
"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".