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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HM Attorney General v Akhter & Ors [2020] EWCA Civ 122 (14 February 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/122.html Cite as: [2021] Fam 277, [2020] 2 FLR 139, [2020] EWCA Civ 122, [2020] 2 FCR 46, [2020] 2 WLR 1183, [2020] WLR(D) 95 |
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ON APPEAL FROM THE FAMILY COURT
Williams J
[2018] EWFC 54
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE KING DBE
and
LORD JUSTICE MOYLAN
____________________
HER MAJESTY'S ATTORNEY GENERAL | Appellant |
|
| - and - |
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Nasreen AKHTER (1)Mohammad Shabaz KHAN (2) -and- Fatima Mohammed HUSSAIN (1) SOUTHALL BLACK SISTERS (2) |
Respondents Interveners |
____________________
Mr C Hale QC, Ms
V
Roberts, Mr M Edwards and Mr H Langford (instructed by BLM Law) for the First Intervener
Mr M Horton (instructed by Bar Public Access (Direct Access) Scheme) for the Second Intervener
Mr N Goodwin QC (instructed by the Government Legal Department) as Advocate to the Court
The Respondents did not appear and were not represented
Hearing dates: 13 & 14 November 2019
Approved Judgment
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan:
Introduction
Attorney
General
appeals from the decision of Williams J to pronounce a decree nisi of nullity. The ceremony which he determined entitled the Petitioner to a decree took place at a restaurant in London on 13th December 1998 ("the December 1998 ceremony"). It was an Islamic marriage ceremony, a Nikah, which the parties knew was of no legal effect and which they intended would be followed by a civil marriage ceremony compliant with English law.
valid
marriage under English law, the judge said, at [6], that this left the issue of whether it created "what has become termed a non-marriage", or alternatively a
void
marriage which entitled the Petitioner to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973 ("the 1973 Act").
valid
according to English law nor
void
has been accepted by the courts in … 11 cases … spanning a period of some 50 years". He decided, however, that the current approach, as applied in those cases, to the question "of whether what the parties did can properly be evaluated as an attempt to comply with the formalities required in English law to create a
valid
marriage", and was therefore "a ceremony within the scope of the" legislation, must "be supplemented" by his "conclusions in relation to some of the human rights arguments" which had been advanced on behalf of the Petitioner: see the judgment at [56], [92(a)] and [93]. He said, at [94] and [94(a)], that this required an approach which was "more flexible in particular to reflect the Article 8 rights of the parties and the children", and justified the court taking "a holistic
view
of a process rather than a single ceremony". Applying this "more flexible interpretation of s.11" of the 1973 Act, Williams J decided, at [96], that the December 1998 ceremony came within the scope of that section so as to entitle the Petitioner to a decree of nullity. It was "a marriage entered into in disregard of certain requirements as to the formation of marriage" and therefore
void
under s. 11(a)(iii).
very
grateful to the
Attorney
General
for agreeing to instruct Mr Goodwin QC as Advocate to the Court to ensure, in particular, that any contrary arguments were put before the court. In the event Mr Goodwin has, effectively, supported the appeal. The
Attorney
General
has been represented by Mr Nagpal and Mr Habteslasie. We are grateful to all counsel for their respective submissions.
(i) Whether there are ceremonies or other acts which do not create a marriage, even avoid
marriage, within the scope of s. 11 of the 1973 Act; and
(ii) If there are, whether the December 1998 ceremony was such a ceremony, currently described as a non-marriage, or whether, as Williams J decided, it created avoid
marriage.
view,
if the concept exists at all, a better way of describing the legal consequences of what has happened is to use the expression, "non-qualifying ceremony" (as set out in paragraph 64 below).
Marital Status Summary
variety
of rights and obligations. It is that status alone, derived from a
valid
ceremony of marriage, which creates these specific rights and obligations and not any other form of relationship. It is, therefore, of considerable importance that when parties decide to marry in England and Wales that they, and the state, know whether what they have done creates a marriage which is recognised as legally
valid.
If they might not have done so, they risk being unable to participate in and benefit from the rights given to a married person.
validly
married should be capable of being easily ascertained. Certainty as to the existence of a marriage is in the interests of the parties to a ceremony and of the state. Indeed, it could be said that the main purpose of the regulatory framework (summarised below), since it was first established over 250 years ago, has been to make this easily ascertainable and, thereby, to provide certainty.
valid
marriage can be "solemnized" are set out in the Marriage Act 1949 ("the 1949 Act"). The Law Commission is currently conducting a review of the law governing how and where couples can marry, announced in July 2019, having concluded in Getting Married, A Scoping Paper, December 2015 ("The Scoping Paper"), at [1.33], that there was a need for law reform for a number of reasons including "the perceived rise in religious-only marriages, that is marriages conducted in accordance with the rites of a particular religion but without legal status". The Law Commission said, at [1.35], that this was a "serious issue" because they "will usually be classified as a 'non-marriage' in English law [with the] result that the parties to it have no legal status, are not counted as married, and have no protection in the event of the relationship breaking down and no automatic rights if the other party dies". That this is a serious issue is supported by the submission we have heard on behalf of Southall Black Sisters that the "total non-recognition … operates to the detriment of women and children". It is also referred to in The Legal Treatment of Islamic Marriage Ceremonies, Oxford Journal of Law and Religion, 2018, 7, 376-400, Professor Probert and Shabana Saleem.
"(1) A religious route into marriage where Anglican preliminaries are followed by an Anglican ceremony.
(2) A civil route into marriage where civil preliminaries are followed by a civil ceremony either in a register office or on approved premises.
(3) A mixed route into marriage where civil preliminaries precede one of four types of religious ceremony. The ceremony can be:
(a) 'according to the usages of the Jews';
(b) 'according to the usages of the Society of Friends' (Quakers); or
(c) 'such form and ceremony' as the parties wish, in a place of religious worship registered for the solemnization of marriage (being a 'registered building'); or
(d) 'according to the rites of the Church of England'."
Although the overall system might be described as complex, we would suggest that it is not difficult for parties who want to be legally married to achieve that status.
Background
Proceedings
valid
marriage. The Petitioner argued that it was a
void
marriage because of the failure to comply with the procedural requirements as to the formation of marriage set out in the 1949 Act. The Respondent argued that the Nikah was of no legal effect.
Attorney
General
intervened in the proceedings. He argued that the Petitioner was not entitled to a decree of nullity because the ceremony did not create a
void
marriage. It was his case that the ceremony was of no legal effect.
Judgment
validly
married under English law by operation of a presumption of marriage"; and (b) if not, whether the marriage was "a
void
marriage, susceptible to a decree of nullity".
v
A-M (Divorce: Jurisdiction:
Validity
of Marriage) [2001] 2 FLR 6 ("A-M
v
A-M") and argued that the court should presume that a
valid
ceremony of marriage had taken place in Dubai while the parties were living there. The judge rejected this argument because the evidence was clear, namely that the only ceremony which had taken place was the December 1998 ceremony. There was "no evidential foundation for a presumed second ceremony". This left no scope for the application of either of the presumptions, from cohabitation and reputation or from a ceremony followed by cohabitation. The issue was the legal effect of the known ceremony.
void
pursuant to s. 11 of the 1973 Act. The concept of a non-marriage was challenged, save (as expressed by the judge at [15(d)]) for "situations which properly warrant the description such as actors acting a scene or parties playing a game". It was also submitted that this concept conflicted with Articles 8, 12 and 14 and Article 1 of the First Protocol ("A1P1") of the European Convention on Human Rights ("the ECHR").
general
challenge to the concept of a non-marriage which he considered was established by the line of 11 cases, starting with the Court of Criminal Appeal's decision in R
v
Bham [1966] 1 QB 159, at [46]. This meant that the issue of whether the court could grant a decree of nullity depended on whether what had taken place in this case amounted to a non-marriage or was a marriage which (as expressed by the judge at [94(a)]) "purports to be of the kind contemplated by the" 1949 Act and, therefore, "within section 11" of the 1973 Act. He set out, at [92], the "starting point in relation to the interpretation and application of section 11 [as being] the net result of the series of cases considered by Moylan J" in A
v
A (
Attorney
General
intervening) [2013] Fam 51 ("A
v
A"). In summary these were that: (a) "Unless a marriage purports to be of the kind contemplated by the [1949 Act] it will not be within section 11"; (b) "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 has to be approached on a case by case basis"; and (c) the court should take
various
factors into account. We set out, in paragraph 27 below, the specific factors referred to by the judge, as adapted by him following his conclusions as to the effect of the "human rights arguments" advanced by the Petitioner.
view
of a process rather than a single ceremony". He then adapted the relevant factors as follows, by adding, at [94], the words appearing in italics:
"(a) whether the ceremony or event set out or purported to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken; (b) whether it bore all or enough of the hallmarks of marriage, including whether it was in public, whether it was witnessed whether promises were made; and (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) whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them".
Legal Structure
very
great consequence", per Lord Merrivale P in Kelly (orse. Hyams)
v
Kelly (1932) 49 TLR 99, at p. 101. Its importance 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.
valid
marriage has been contracted. As referred to below, the statutory regulation of the prescribed formalities required to effect a
valid
marriage was first introduced in 1753 to create certainty in response to the difficulties being caused by what were known as "clandestine" marriages. Certainty remains in the public interest because, as again identified in The Scoping Paper, at [1.2], "it should … be clear when [a marriage] has come into being".
Vervaeke
(formerly Messina)
v
Smith [1983] AC 145, in which it was held that the upholding of the status of marriage is a doctrine of English public policy law. One of the issues in that case was the effect of the parties' intentions, namely that they did not intend to live together as husband and wife, on the
validity
of the marriage. The facts of that case were
very
different from the present case but they provide the context for some
general
observations made by Ormrod J (as he then was) at first instance which were quoted with approval by Lord Hailsham of St. Marylebone LC, at p. 151H – p. 152E, as being "a correct statement of English law", as follows:
"Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, e.g., a formal betrothal ceremony as in Kelly (Orse. Hyams)v.
Kelly (1932) 49 T.L.R. 99 ... or as in Mehta (Orse. Kohn)
v.
Mehta [1945] 2 All E.R. 690, a ceremony of religious conversion. In such cases the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing and such marriages are, therefore,
void
or perhaps
voidable.
On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about or unaware of some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the
value
of the system of registration of marriages upon which so much depends in a modern community. Lord Merrivale in Kelly (Orse. Hyams)
v.
Kelly, 49 T.L.R. 99, 101 said: 'In a country like ours, where the marriage status is of
very
great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage of law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.' See also the observations of Hodson J. in Way
v.
Way [1950] P. 71, 79, approved by the Court of Appeal in Kenward
v.
Kenward [1961] P. 124, 133 and Silver
v.
Silver [1955] 2 All E.R. 614."
Lord Hailsham then went on to say, at p. 152E, that "in the light of the quotation from Lord Merrivale … it [could not] seriously be contested that the law as there enunciated is based on grounds of public policy".
v
Collett [1968] P 482, at pp. 491F and 492, about the "
general
approach of English law to the question of the formal
validity
of a marriage":
"The control of the formation of marriage in this country has a long statutory history, much of it intended to prevent clandestine marriages. Thegeneral
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.
[…]
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 therefrom is that, if a ceremony of marriage has actually taken place which, as a ceremony, would be sufficient to constitute avalid
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."
Statutory Regulation of Marriage
valid
marriage can be contracted. It is not necessary for the purposes of this case to set out more than a
very
brief analysis of the regulatory framework governing the required formalities entailed in each of the individual "routes into marriage".
validly
married.
valid.
These included that a licence had been obtained or banns published and that the ceremony had taken place in a church or chapel in the presence of a priest and two witnesses. Any failure to comply with the stipulated requirements would result in the marriage being null and
void.
It also provided that the penalty for any celebrant found guilty of solemnizing a marriage contrary to the provisions of the Act was transportation for 14 years.
v
A and it is not necessary to repeat it in this judgment. We would note only the following developments.
very
significantly ameliorated by the Marriage Act 1823 and repeated in the Marriage Act 1836. The latter provided, in s. 42, that a marriage would only be
void
if both parties "knowingly and wilfully intermarry … under the Provisions of this Act" without complying with certain of the required formalities as specifically set out in that Act. The same wording now appears in s. 49 of the 1949 Act (which we set out in paragraph 41 below).
v
A, at [48]: "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 solemnization 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". The requirement for a registrar to be present if the ceremony took place in a non-Anglican place of worship was removed by the Marriage Act 1898 which established "authorised persons" who could take the place of registrars.
void.
We deal with these in reverse order, as the present case concerns Part III.
"26 Marriage of a man and a woman; marriage of same sex couples for which no opt-in necessary
(1) The following marriages may be solemnized on the authority of two certificates of a superintendent registrar—
(a) a marriage of a man and a woman, in a building registered under section 41, according to such form and ceremony as the persons to be married see fit to adopt;
(b) a marriage of any couple in the office of a superintendent registrar;
(bb) a marriage of any couple on approved premises;
(c) a marriage of a man and a woman according to the usages of the Society of Friends (commonly called Quakers);
(d) a marriage between a man and a woman professing the Jewish religion according to the usages of the Jews;
(dd) a qualifying residential marriage;
(e) a marriage of a man and a woman according to the rites of the Church of England in any church or chapel in which banns of matrimony may be published ...".
In order to obtain certificates from a superintendent registrar, each of the parties must give notice as required by s. 27 of the 1949 Act (and following sections).
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, in respect of each of the persons to be married, by the superintendent registrar to whom notice of marriage was given;
(c) …
(d) on the authority of certificates which arevoid
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)(bb) 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;
(gg) in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or
(h) in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section;
the marriage shall bevoid."
We do not need to refer to section 49A which contains additional provisions in respect of same sex marriages.
void.
We do not propose to set out the provisions of this section because the specific formalities listed are not relevant in this case. The relevant element is that the marriage must have been "according" to the rites of the Church of England.
view,
they support the conclusion that to "intermarry according to the rites of the Church of England" requires a marriage that can, at least, be said to be according to these rites. Similarly, the words "intermarry under the provisions of this Part of this Act" must mean more than simply the performance of a ceremony of marriage in England. It must be a marriage which can be defined or described as a marriage being contracted under Part III of the 1949 Act.
view
of the authors, with which we agree, "it would be wrong in principle for those who know that they are flouting the law to have more rights than those who do not". In our
view,
this also supports the conclusion that there is a threshold which has to be crossed before it can be said that the parties have intermarried under the provisions of Part III of the 1949 Act.
Nullity
void
marriage is "strictly speaking a contradiction in terms": Bromley's Family Law 11th Ed., 2015 by Lowe and Douglas, at p. 67. This is because 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.
The grant of a decree of nullity is, however, significant because, as referred to above, it entitles the parties to apply for financial remedy orders under the 1973 Act.
void,
as noted at [6] of the Report, was an "invalid ceremony of marriage" as "governed by the Marriage Act 1949". The Report recommended, at [96(a)], that the "law relating to nullity should be incorporated in a comprehensive statute" and, at [96(b)], that "the substance of the law should remain unchanged". This was carried through into the structure of the legislation, as recommended in the Report, and in the proposed grounds on which a marriage would be
void,
initially in the 1971 Act, and now in s. 11 of the 1973 Act.
"11. Grounds on which a marriage isvoid
A marriage celebrated after 31st July 1971, other than a marriage to which section 12A applies, shall bevoid
on the following grounds only, that is to say—
(a) that it is not avalid
marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where—
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b) that at the time of the marriage either party was already lawfully married or a civil partner;
(c) . . .
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other."
It is clear that s. 11(a)(iii) refers to the provisions of the 1949 Act partly because it is clear from the Law Commission Report that, as referred to above, the 1971 Act (which is in the same terms as the 1973 Act) was not intended to change the law and partly because the 1949 Act is the Act which sets out when non-compliance with the required formalities will make a marriagevoid
(including, by incorporation, under the Marriage (Registrar
General's
Licence) Act 1970, s. 13).
void:
s. 25 (in respect of Anglican marriages) and s.49 (in respect of all other marriages) with additional provisions in respect of same sex couples under s. 49A. The Act also expressly provides when proof of certain matters is not required to establish that a marriage is
valid:
e.g. s. 24 (in respect of Anglican marriages) and s. 48 (in respect of all other marriages). We would also mention that when the effect of non-compliance with some provisions, such as the presence of two witnesses (ss. 22, 44 and 46B), is not expressly addressed in the Act, the approach taken by the courts (see paragraph 31 above and 50 below) has been that non-compliance does not affect the
validity
of the marriage.
void
in circumstances other than those set out in that Act. We do not agree with this submission at least in respect of the circumstances of this case and certainly in respect of the court's power to grant a decree of nullity. As appears to have been agreed below, s. 11 of the 1973 Act prescribes when the court will have jurisdiction to grant a decree of nullity. Williams J recorded, at [51], Mr Le Grice QC's acknowledgement that "there is no residual inherent power in the High Court to grant a decree of nullity save under statute". Further, as set out above, s. 11(a)(iii) is clearly referring to non-compliance with those formalities which the 1949 Act expressly stipulates will make a marriage
void.
As set out in A
v
A, at [50]-[51] (Dr Lushington in Catterall
v
Sweetman (1845) 1 Rob Eccl 304 and Lord Penzance in Greaves
v
Greaves (1872) LR 2 P & D 423), it has long been established that the statutory provisions delineate when non-compliance with one of the required formalities will make a marriage
void.
void".
In our
view,
the combined effect of these provisions is clear, namely that whether the court can grant a decree of nullity because a marriage is
void
is to be determined by the provisions of s. 11 and, through s. 11(a)(iii), by the provisions of the 1949 Act.
Non-Marriage
valid
marriage is contracted. The 1949 Act and the 1973 Act set out when non-compliance with certain of the required formalities will make a marriage
void.
They do not contain any provisions setting out when a ceremony will not be within the scope of the Act at all. It has long been recognised, however, that there must be some ceremonies or acts which do not create even a
void
marriage and which, therefore, do not entitle a party to a decree of nullity. For example, in Risk (otherwise Yerburgh)
v
Risk [1951] P 50, Barnard J decided, at p. 53, that the court had no jurisdiction to grant a decree because, under English law, the marriage ceremony which had taken place in Egypt was "no marriage".The circumstances of that case were
very
different in that the basis of the decision was that the marriage was polygamous, the law in respect of which has since changed, but the issue of principle is the same. We would also refer to, The Formation and Annulment of Marriage, 1st Ed 1951, in which Joseph Jackson said, at p. 65, that "the question whether a marriage is
void,
voidable
or
valid
presupposes the existence of an act allegedly creative of the marriage status".
v
Bham [1966] 1 QB 159. The case concerned the criminal prosecution of an Imam under section 75(2)(a) of the 1949 Act for having conducted an Islamic ceremony of marriage in a private house in England. As noted in A
v
A, at [68], counsel for the Crown accepted that the ceremony in that case could not, wherever performed in England, have created more than a "purported marriage". In its judgment quashing the defendant's conviction, however, the Court of Criminal Appeal accepted, as correct, the submissions made on behalf of the defendant that the 1949 Act applies only to marriages "permitted by English domestic law", at p. 168/B/C. This was because:
"The provisions of the Act prescribe and control the manner in which such a marriage may be solemnised. 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", at p. 168 C/D; and:
"What, in our judgment, was contemplated by this Act and its predecessors in dealing with marriage, 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, avalid
marriage", at p. 169 B/C.
The Court agreed with and adopted, at p. 169/D, what Humphreys J had said in Rv
Mohamed (Ali) [1964] 2 QB 350n: to be within the Act, the ceremony "must be at least one which will prima facie confer the status of husband and wife on the two persons".
v
Bham does not provide a precise answer to the question of when a ceremony will be within the scope of the 1949 Act when it "does not purport to be of the kind allowed by English domestic law". This led to some discussion during the hearing of the appeal as to the meaning of the word "purport" in these circumstances. This is relevant because, as was observed in the Law Commission's report on Solemnisation 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 … avalid
marriage'".
We return to this question below. At present we would simply note that Rv
Bham is clear authority for the proposition that there can be ceremonies of marriage which are not within the scope of the 1949 Act at all and which would not, therefore, be within the scope of s. 11(a)(iii) of the 1973 Act.
v
Yagoub [1997] 1 FLR 854; A-M
v
A-M; Hudson
v
Leigh (Note) [2013] Fam 77 (an application for permission to appeal was dismissed by the Court of Appeal); Al-Saedy
v
Musawi (Presumption of Marriage) [2011] 2 FLR 287; El Gamal
v
Al-Maktoum [2012] 2 FLR 387; Dukali
v
Lamrani (
Attorney
General
intervening) [2013] 2 FLR 1099; and A
v
A.
v
Shagroon [2013] 1 FLR 1493, the Court of Appeal approved Holman J's decision in Dukali
v
Lamrani and also referred, at [28], to Bodey J's judgment in Hudson
v
Leigh as having been "endorsed by [the Court of Appeal] when rejecting the oral permission application". Both Dukali
v
Lamrani and Sharbatly
v
Shagroon concerned applications for permission to apply for a financial remedy order after an overseas divorce under the Matrimonial and Family Proceedings Act 1984. In both cases, however, the marriages had been conducted in England; in the former by a Moroccan civil ceremony conducted at the Moroccan Consulate in London; in the latter, by an Islamic ceremony of marriage at a hotel in London.
valid
nor
void
but was non-existent. It was not
valid
because there was manifold non-compliance with every requirement of the Marriage Acts as to notification, use of a registered or approved
venue,
form, authorisation of the officiant and subsequent registration". It was also not a
void
marriage because, at [36], "it did not even purport to be a marriage under the provisions of the Marriage Acts"; the parties had not "purported to inter-marry under the provisions of [Part III] of the 1949 Act at all". It was therefore, at [37], a "non-marriage".
v
Shagroon Thorpe LJ expressly agreed with Holman J's analysis, including the following passage, quoted by Thorpe LJ at [32]:
"[44] Despite all these points and considerations, however, I have reached the firmview,
submitted not only on behalf of the husband but also by counsel on behalf of the intervening
Attorney-General,
that the word 'marriage' in s 12 and Part III
generally
of the MFPA must mean, and can only mean, a marriage which is, or under English law is recognised as, a
valid
or at least a
void
marriage. That is the natural meaning and scope of the word 'marriage' when used in this context. Far from needing to use words of limitation or exclusion to limit 'marriage' to a
valid
or
void
marriage, Parliament would have needed to use express words of inclusion if it had intended to enlarge and include within the word 'marriage' even what is characterised here as a non-marriage. That is particularly so in the case of a marriage which was actually contracted in England. If the marriage relied upon is a ceremony which took place here but which was so irregular and altogether outside the scope of the Marriage Acts as not to be a marriage at all, not even a
void
one, then in my
view
it would require clear words from Parliament before it could fall within the scope of s 12 and Part III [of the 1984 Act]."
valid
or at least a
void
marriage". As well as approving this reasoning, Thorpe LJ made clear, at [33], that the 1984 Act "cannot be divorced from the 1973 Act" and, at [34], that his decision was based on his conclusion that "fundamental" to the right to apply under the 1984 Act "is the existence of a marriage recognised as
valid
or
void
by the lex loci celebrationis" (i.e. England and Wales).
very
considerable difficulties, similar to those which the regulatory system first introduced in 1753 has been designed to prevent.
void
marriages. In summary, in some cases the extent of non-compliance with the formal requirements stipulated under the 1949 Act means that the manner in which the marriage has been "solemnized" (to use the word from the 1949 Act, including s. 29), is such that the parties have not intermarried under the provisions of Part III or, when relevant, according to the rites of the Church of England.
Issue (i):
void
marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity.
void
marriage. Rather, we would suggest that the focus of the parties who want to marry and of those officiating at a ceremony of marriage, should be on complying with the required formalities so that they can be confident that they have contracted a
valid
marriage. Thirdly, although there may be ceremonies, such as in A
v
A, when the cumulative effect of compliance with the required formalities is to create a
valid
or, alternatively, a
void
marriage, we would not want to encourage parties who want to marry to rely on such partially compliant ceremonies because the outcome will, inevitably, be uncertain.
Human Rights
valid
marriage", accepted the submission of Mr Le Grice that, in interpreting s. 11 of the 1973 Act, the court should take into account fundamental rights under the ECHR.
void
marriage, relied upon the following key aspects of the ECHR in support of his determination that there should be a flexible approach to the interpretation of s. 11 of the 1973 Act. We will deal with these issues in the following order:
i) Article 12 ECHR: the judge held, at [93(c)], that "a horizontal effect together withgeneral
principles of fairness or equitable principles support the proposition that if the parties had agreed to or it was their joint understanding that they would engage in a process which would ultimately lead to a legally
valid
marriage means that should be taken into account in determining whether [what] took place falls within or without the parameters of section 11";
ii) The judge held, at [93(a)], that where the parties intended to effect a legal marriage, Article 8 supports an approach to interpretation "and application which [results in] the finding of a decree of avoid
marriage rather than a wholly invalid marriage";
iii) The court should, where appropriate, consider the best interests of the children, at [93(b)].
A1P1
"1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by thegeneral
principles of international law".
v
Ram [2004] EWCA Civ 1452; [2005] 2 FLR 63 and Gray
v
Work [2017] EWCA Civ 260; [2018] Fam 35) the gateway to those property rights is the right to a decree of either divorce or nullity.
"88…The unascertained right to a share of the matrimonial property seems to me dependent upon establishing that there is either avalid
or a
void
marriage and thus there is no potential property right infringed until that is established. I therefore do not consider that the A1P1 argument assists either in respect of an assertion that a determination of non-marriage infringes rights or that the court should interpret section 11 so as to act compatibly with A1P1 rights."
We agree with this analysis and, accordingly, A1P1 cannot be used as a basis for, or to bolster other, human rights arguments.
Article 12
"Article 12 - right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
Attorney
General
nor the Petitioner sought to rely on Article 12. Both accepted that domestic law can properly impose formalities on marriage and that there is no Article 12 obligation on the state to recognise a religious marriage: see for example: X
v
Federal Republic of Germany (No 6167/73) (1975) 1 DR 64 and Hamer and United Kingdom (7114/75) (1982) 4 EHRR 139 [60]-[61].
vertical
perspective", there was no basis on which to conclude that a failure to regard the Petitioner's Nikah as a
void
marriage could amount to a breach of Article 12. The judge still regarded Article 12, however, as relevant and, by a somewhat unconventional route, concluded that this was a
void
marriage, in part by reason of what he called Article 12's "horizontal effect".
v
Ireland [1986] ECHR 17, (1986) 9 EHRR 203 (Johnston) the ECtHR said:
"52 the Court agrees with the Commission that the ordinary meaning of the words 'right to marry' is clear, in the sense that they cover the formation of marital relationships but not their dissolution. Furthermore, these words are found in a context that includes an express reference to "national laws"; even if, as the applicants would have it, the prohibition on divorce is to be seen as a restriction on capacity to marry, the Court does not consider that, in a society adhering to the principle of monogamy, such a restriction can be regarded as injuring the substance of the right guaranteed by Article 12 (art. 12). (our emphasis)
Moreover, the foregoing interpretation of Article 12 (art. 12) is consistent with its object and purpose as revealed by the travaux préparatoires. … In the Court'sview,
the travaux préparatoires disclose no intention to include in Article 12 (art. 12) any guarantee of a right to have the ties of marriage dissolved by divorce.
53. The applicants set considerable store on the social developments that have occurred since the Convention was drafted, notably an alleged substantial increase in marriage breakdown.
It is true that the Convention and its Protocols must be interpreted in the light of present-day conditions (see, amongst several authorities, the above-mentioned Marckx judgment, Series A no. 31, p. 26, § 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset. This is particularly so here, where the omission was deliberate."
v
Owens [2017] EWCA Civ 182, [2018] 1 FLR 1002, at [76]–[81] where the Court of Appeal, having considered Johnston, held that a submission that there is no Convention right to be divorced nor, if domestic law permits divorce, a right to a "favourable outcome" was "irrefutable" - a proposition not thereafter challenged in the Supreme Court [2018] UKSC 41, at [29]. This is not to say that there might not be circumstances in which Article 12 could be engaged if the domestic divorce provisions, for example, created "insurmountable legal impediments on the possibility to remarry after divorce": Babiarz
v
Poland [2017] ECHR 13, [2017] 2 FLR 613, at [50] (see paragraph 104 below).
very
far removed from this case, which is not about any impediment to the right to marry but only about whether the Petitioner is entitled to a decree of nullity. It being "irrefutable" that there is no absolute right to be divorced under Article 12, the question is whether Article 12 applies to nullity. In our judgment it does not. Logic alone would dictate this to be the case but, in any event, casting back to the ECtHR's words in Johnston, if Article 12 cannot cover "the dissolution of a marriage", it cannot cover a situation where a marriage is declared null and
void
ab initio.
view
that Article 12 has no place in this case. For completeness sake, however, we address the judge's finding that Article 12 has "horizontal" effect and that:
"83 … in this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which isvalid
under English law the husband himself has infringed her right to marry. Once she had embarked on the process going through the Nikah ceremony and consummating the marriage, notwithstanding Ms Rhone-Adrien's assertion that she could have left the marriage at any stage, the reality for this wife and I suppose many others in her situation is that this was not a realistic option for her. Thus if this marriage is not a
valid
marriage according to English law nor a
void
marriage she is left without the remedies which arise from divorce or nullity. It seems to me this must be a relevant consideration in the evaluation of whether on these facts this should be treated as a
void
marriage."
general
principles of fairness or equitable principles support the proposition" that a failure to fulfil the agreement or "joint understanding that they would engage in a process which would ultimately lead to a legally
valid
marriage" should be "taken into account in determining whether [what] took place falls within or without the parameters of section 11".
void
marriage is) would not logically remedy a determination that the right to marry was infringed.
valid
according to Islam, also becoming a legal marriage under the 1949 Act.
"Engagements to marry not enforceable at law.
(1) An agreement between two persons to marry one another shall not under the law of England and Wales have effect as a contract giving rise to legal rights and no action shall lie in England and Wales for breach of such an agreement, whatever the law applicable to the agreement."
Article 8
"Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence
2 There shall be no interference by a public authority with the law and it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
v
Turkey (3976/05) (2011) 53 EHRR 25 (Serife Yigit) the ECtHR considered the human rights implications of a refusal to give a widow's pension to a woman who had married her partner in a religious ceremony but without a recognised civil ceremony. There was a challenge on the basis of Article 14 taken with A1PI, but the second limb to the argument put before the court was based on an alleged
violation
of Article 8 on the basis that a failure to recognise their religious marriage amounted to an infringement of the surviving partner's right to respect for private and family life.
"100. It should be reiterated in this regard that the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in effective "respect" for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see Hokkanenv.
Finland, 23 September 1994, § 55, Series A no. 299-A). Furthermore, in the sphere of the State's planned economic, fiscal or social policy, on which opinions within a democratic society may reasonably differ widely, that margin is necessarily wider (see, mutatis mutandis, James and Others, cited above, § 46). This applies also in the present case (see paragraph 82 above).
101. As to the applicant, she chose, together with her partner, to live in a religious marriage and found a family. She and Ö.K. were able to live peacefully as a family, free from any interference with their family life by the domestic authorities. Thus, the fact that they opted for the religious form of marriage and did not contract a civil marriage did not entail any penalties – either administrative or criminal – such as to prevent the applicant from leading an effective family life for the purposes of Article 8. The Court therefore finds no appearance of interference by the State with the applicant's family life.
102. Accordingly, the Court is of theview
that Article 8 cannot be interpreted as imposing an obligation on the State to recognise religious marriage. In that regard it is important to point out, as the Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8."
"Furthermore, the rules laying down the substantive and formal conditions governing civil marriage are clear and accessible and the arrangements for contracting a civil marriage are straightforward and do not place an excessive burden on the persons concerned", at [86].
view,
accessible in that they provide a number of different ways in which a
valid
marriage can be contracted which "do not place an excessive burden on the persons concerned". We reiterate that these routes include parties incorporating a religious ceremony of their choosing, including a Nikah.
Attorney
General's
submission, made in line with Serife Yigit, that there is no distinction in Article 8 terms between those who cohabit, choosing not to marry, and those who "knowingly undertake" only a particular form of ceremony (in this case religious) and "opt not to undertake the additional formalities necessary to effect a
valid
legal marriage", as found by the judge, at [80]. The judge however then went on to distinguish Serife Yigit saying:
"80 … However I do consider that in respect of those who sought to effect or intended to effect a legal marriage that article 8 supports an approach to interpretation and application which [results in] the finding of a decree of avoid
marriage rather than a wholly invalid marriage".
view,
at [93(a)], that Article 8 supports an approach to interpretation which results in "the finding of a decree of a
void
marriage rather than a wholly invalid marriage" or that such an approach is consistent with "the historic approach of the courts as shown by the presumptions but also [as] clearly emerges from the authorities over the centuries which supports a finding of marriage".
"Article 12 ECHR on a horizontal effect basis together withgeneral
principles of fairness or equitable principles support the proposition that if the parties had agreed to or it was their joint understanding that they would engage in a process which would ultimately lead to a legally
valid
marriage that should be taken into account in determining whether took place falls within or without the parameters of section 11."
view",
he found, at [95]-[96], the failure to have a civil ceremony amounted, not to a deliberate failure to attempt to comply with any of the necessary formalities required under the 1949 Act resulting in a non-marriage, but only a failure to comply with certain formalities under s. 11(a)(iii), allowing the court to hold that the marriage was
void.
"94. Incorporating those considerations into the starting point leads me to conclude that the approach should be somewhat more flexible to reflect the Article 8 rights of the parties and the children".
view,
that Article 8 supports an interpretation and application in favour of a
void
rather than invalid marriage, depended upon the couple having "sought to effect" or having "intended" to effect a legal marriage. The difficulty with the judge's approach is that, as referred to above, at no time did the parties in fact seek to effect a legal marriage. As there is no question of the couple having ever sought to effect a legal marriage, the judge has, instead, relied upon the continuum argument, namely the parties' agreement at the date of the Nikah that they would have a civil ceremony at some future date with the intention to effect a legal marriage. The judge's analysis in this respect would also, again, fall foul of s. 1 of the 1970 Act.
void
must, in our
view,
depend on the facts as they were at the date of the alleged marriage. A marriage either is or is not
void
and either is or is not within the scope of the 1949 Act at the date of its alleged solemnization. The determination of whether a marriage is
void
or not cannot, in our
view,
be wholly (or in part) dependent on future events, such as the intention to undertake another ceremony or whether there are children. We return to this below but, putting it more broadly, it cannot be the case that the legal effect of a ceremony of marriage can depend on whether the parties have children either at the date of the ceremony or subsequently. There is no basis, under Article 8 or by
virtue
of the impact of Article 3 of the United Nations Convention on the Rights of the Child 1990 ("UNCRC"), by which the legal effect of the same ceremony could be converted including from a non-marriage to a
void
marriage.
"[77] Mr Dyer's argument in answer to Mr Marshall's argument was simple, clear and, in my judgment, irrefutable. There is, he submitted, no Convention right to be divorced nor, if domestic law permits divorce, is there any Convention right to a favourable outcome in such proceedings. He referred to two authorities.
[78] In the first, Johnstonv
Ireland (1986) 9 EHRR 203, at paras 52-53, the Strasbourg court said this in relation to Article 12 [quoted in our paragraph 80 above]:
[…]
[79] In relation to Article 8, the Court said this, para 57:
'It is true that, on this question, Article 8, with its reference to the somewhatvague
notion of 'respect' for family life, might appear to lend itself more readily to an evolutive interpretation than does Article 12. Nevertheless, the Convention must be read as a whole and the Court does not consider that a right to divorce, which it has found to be excluded from Article 12, can, with consistency, be derived from Article 8, a provision of more
general
purpose and scope. The Court is not oblivious to the plight of the first and second applicants. However, it is of the opinion that, although the protection of private or family life may sometimes necessitate means whereby spouses can be relieved from the duty to live together, the engagements undertaken by Ireland under Article 8 cannot be regarded as extending to an obligation on its part to introduce measures permitting the divorce and the re-marriage which the applicants seek.'
[80] In the second case, thevery
recent judgment in Babiarz
v
Poland (Application no. 1955/10), 10 January 2017, paras 47, 49-50, 56, the Strasbourg court, referring to Johnston
v
Ireland, said:
'47 … In the area of framing their divorce laws and implementing them in concrete cases, the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention and to reconcile the competing personal interests at stake.
[…]
49 The Court has already held that neither Article 12 nor 8 of the Convention can be interpreted as conferring on individuals a right to divorce. Moreover, the travaux préparatoires of the Convention indicate clearly that it was an intention of the Contracting Parties to expressly exclude such right from the scope of the Convention. Nevertheless, the Court has reiterated on many occasions that the Convention is a living instrument to be interpreted in the light of present-day conditions. It has also held that, if national legislation allows divorce, which is not a requirement of the Convention, Article 12 secures for divorced persons the right to remarry.
50 Thus, the Court has not ruled out that the unreasonable length of judicial divorce proceedings could raise an issue under Article 12. The Court did not rule out that a similar conclusion could be reached in cases where, despite an irretrievable breakdown of marital life, domestic law regarded the lack of consent of an innocent party as an insurmountable obstacle to granting a divorce to a guilty party. However, that type of situation does not obtain in the present case, which concerns neither a complaint about the excessive length of divorce proceedings nor insurmountable legal impediments on the possibility to remarry after divorce." (our emphasis)
v
Finland [2015] 1 FCR 379, 37 BHRC 55, at [83], on the basis that the issue of status in this case falls four square within the ambit of Article 8 since what is at stake is an "essential change in the applicant's legal situation". In our judgment so equally does a decree of divorce.
i) Whilst the Petitioner's Article 8 right to respect to family life is undoubtedly engaged, the failure of the state to recognise the Nikah as a legal marriage is not in breach of those rights;
ii) The right or otherwise to the grant of a decree of nullity does not in itself engage Article 8.
The fact that at the time of the Nikah ceremony both parties knew that in order to contract a legal marriage they had to go through a civil ceremony, and intended to do so, does not undermine either of those conclusions or permit reliance on Article 8 as a means to allow a flexible interpretation of s. 11 of the 1973 Act.
The best interests of the children
"… consider to what extent the rights of the minor children might be engaged given that a consequence of the decision I reach will have a knock-on effect on the children through the availability or not to the wife of a financial remedy where the first consideration would be the welfare of the children."
"Article 3
1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
viewed
through the prism of Article 3: see: ZH (Tanzania)
v
Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, per Baroness Hale at [23];
"This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law."
v
Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening) [2012] UKSC 25, [2013] 1 AC 338, [2012] 4 All ER 539, was a case concerned with the rights of two children whose parents were the subject of extradition proceedings. Lord Kerr said:
"155. Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that "in all actions concerning children ... the best interests of the child shall be a primary consideration". …The word "concerning" in article 3.1, like the phrase "relating to" in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case."
The question then is whether, upon a proper interpretation of Article 3, the present application is an "action concerning children" whether by way of the direct or indirect effect upon him or her.
"72. It seems to me that the decision that I reach in this case is properly described as an action concerning children both because a direct consequence will be the availability or non-availability of a financial remedy of quite a different character to that which is available under the Children Act 1989. I also consider that it is an action concerning the children because it involves a determination of whether the relationship of their mother and father is to be described and categorised as a non-marriage or avoid
marriage. A marriage which is ended by a decree of nullity for non-compliance with the formalities of legal marriage is in my
view
a matter which concerns the children."
This finding fed into the judge's conclusion that:
"93b. The court should where it is appropriate be able to take into account the best interests of children as a primary consideration and weight with other article 8 rights of the parties."
With respect to the judge, we disagree. In ourview
the decision before the court cannot properly be described as an action concerning children and we cannot see how it can be said that the best interests of a child can turn what was neither a
void
nor
valid
marriage, into a
void
or
valid
marriage. In our judgment, the action in question relates solely to the status of the adult applicant.
void
marriage". This, all parties agree, is a reference to the suggestion that there may potentially be reputational issues attached to those children whose parents' relationship is held to be a non-marriage.
void
marriages:
"1 Legitimacy of children of certainvoid
marriages
(1)The child of avoid
marriage, whenever born, shall, subject to subsection (2) below and Schedule 1 to this Act, be treated as the legitimate child of his parents if at the time of the insemination resulting in the birth or, where there was no such insemination, the child's conception (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was
valid."
valid
marriage for the purposes of the law of England and Wales. It follows, therefore, that even if this was a
void
marriage, the children would be illegitimate (or, put in the more attractive and contemporary terminology used in Scotland, the children would be the "natural" children of their parents). The status of the parents' relationship therefore makes no difference to the legal status of the children of these parties.
"(1) In this Act and enactments passed and instruments made after the coming into force of this section, references (however expressed) to any relationship between two persons shall, unless the contrary intention appears, be construed without regard to whether or not the father and mother of either of them, or the father and mother of any person through whom the relationship is deduced, have or had been married to each other at any time."
It follows that as of 4 April 1988 when the FLRA 1987 came into force, there is legal equality for all children whether or not their parents have ever been married to each other.
void
marriage.
Article 14: Discrimination.
Issue (i):
view
that they do not support any departure from the current legal approach as also summarised above. Accordingly, we repeat, there can be ceremonies which do not create a marriage, even a
void
marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity.
Issue (ii)
void
marriage within the scope of s. 11 of the 1973 Act.
void
marriage because it was a non-qualifying ceremony. The parties were not marrying "under the provisions" of Part III of the 1949 Act. The ceremony itself would have been permitted under s. 44 if it had been performed in a registered building, but it was not. In addition, no notice had been given to the superintendent registrar, no certificates had been issued, and no registrar or authorised person was present at the ceremony. It was not, therefore, a marriage within the scope of, in particular, the provisions of s. 26 of the 1949 Act. We would also add that the parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony which complied with the requirements of the 1949 Act if they were to be
validly
married.
voidable
marriage as expressly provided for by s. 12 of the 1973 Act. Whether a ceremony created a
valid
marriage or a
void
marriage or was of no legal effect at all must be determined at the date of the ceremony. It would make no sense for its legal effect to fluctuate depending, as was submitted by Mr Hale, on future events such as whether the parties did or did not have children. There is no support for this approach to the determination of the legal effect of a ceremony either in our domestic legislation or in the ECHR or in any case to which we were referred. Further, to adopt this approach would also fundamentally undermine the need for the parties and the state to know, as from the date of the ceremony, whether the parties are or are not
validly
married.
valid
marriage. We repeat that, in our
view,
the effect of a ceremony of marriage must be determined as at the date it was performed. To use the language of the 1949 Act, the issue of whether a marriage has been
validly
"solemnized" depends on what has in fact happened when it was allegedly "solemnized".
view, depend on whether the parties might have agreed to undertake a further step or steps. This might result in a party being married even when they had changed their mind part way through the process. This proposed development of the law would also fundamentally undermine the manner in which the status of marriage is created and the necessary degree of certainty which underpins the required formalities. In addition, as Mr Nagpal submitted, this would be inconsistent with the express abolition of the right to sue for breach of an agreement to marry by section 1 of the 1970 Act.
Conclusion