According to Lord Penzance in the historic case of Hyde v. Hyde (1866) LR 1 PD 130, marriage can be described as “the voluntary union for life of one man and one woman to the exclusion of all others.” This definition still holds true today: marriage must be voluntary, heterosexual, and monogamous.

This short blog is informed by many couples in the Ghanaian community who have gone through a “religious marriage” or “blessing” but whose “marriages” did not meet the requirements of the Marriage Act 1949. As a community lawyer, I have represented many “divorcing” couples whose religious “marriages” were found to be invalid under English law.

I am also aware that many in our community, both pastors and congregants, would give priority to a religious ceremony over customary or civil marriage. This blog is therefore to raise awareness about these profound challenges and how they can be prevented.

The definition of marriage has been considered in cases relating to capacity to marry. In Re SK (vulnerable adult capacity), Wood J considered an application by a local authority for, inter alia, a declaration that a vulnerable adult lacked the capacity to marry. He referred to the case of In the Estate of Park, Park v. Park, where Singleton LJ described:

‘The duties and responsibilities that normally attach to marriage can be summarised as follows: Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife; the essence of the contract being an agreement between a man and a woman to live together and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort, and assistance.’

Religious marriage in a registered building

The Church of England is the only religious body whose own buildings, ceremonies, and celebrants are automatically qualified to create and register opposite-sex marriages. All other communities must involve an additional civil element, and the place of worship may have to be separately registered to celebrate valid marriages.

To be legally valid, a religious marriage (other than marriage according to the rites and ceremonies of the Church of England and the Church in Wales, and Jewish and Quaker marriage) must generally take place in a registered building. This means that the building must have been certified for religious worship and registered for the purposes of marriage.

The Places of Worship Registration Act 1855 provides for places of religious worship, except those of the Established Church, to be certified by the Registrar General. A building must be certified as a place of religious worship before it can be registered for marriages by the Registrar General under the Marriage Act 1949.

One year after a building has been registered for the solemnisation of marriages, the trustees or governing body can appoint an “authorised person” to register marriages in the building’s own set of marriage registers. Authorised persons are usually members of the religious community. Further information is provided on the Gov.UK website.

Why do our community prefer religious “marriages” although they are non-binding?

Research by Warwick Law School and the University of Exeter for the Nuffield Foundation, which helped inform the Law Commission’s work on wedding law, specifically looked at why non-legally binding ceremonies were taking place, including 88 participants who had gone through such a ceremony. Although most had also had a legal ceremony, 16 had not, of whom 14 were Muslims who had entered into a nikah, a Muslim religious wedding ceremony. Most participants viewed the nikah as more meaningful and the point at which they felt “married.” Muslim couples tended to have their religious ceremony first and for there then to be a longer delay before the legal wedding took place in comparison to other faith-based couples. Reasons for avoiding a legally binding marriage included financial considerations where one party wished to ring-fence their assets; avoiding the process of legally divorcing (for those with previous experience of this) and the perceived flexibility in obtaining a religious divorce; not being able to get married legally; a lack of awareness that the religious ceremony was not legally recognised; or a simple lack of desire to be legally married.

No doubt, many Christians in our community also ascribe some of the above reasons for preferring a non-bidding religious’ “marriage” to a bidding civil marriage.

Marriage not in a registered building

Those who wish to celebrate their marriage in a place of worship, or elsewhere, that has not been registered for marriage must go through an additional civil ceremony to be legally married.

Legal consequences of unregistered religious marriage

The law generally regards parties to a marriage which is not legally recognised as cohabitants, and their marriage as a “non-marriage,” rather than as a void marriage. Although it is not always strictly necessary to do so, the parties to a void marriage may seek a decree of nullity. One advantage of doing so is that, when granting the decree, the court has the same powers to make orders for financial provision as on divorce. This contrasts with the position for “non-marriages” where the parties cannot petition in an English court for a decree of divorce or nullity and consequent financial provision if their relationship breaks down, and the court has no power to override the strict legal ownership of property.

The consequences of being in an unregistered marriage and treated as a cohabitant, may be felt particularly when the relationship ends, whether on death or because it breaks down. Relationship ends on death.

When one cohabitant dies without leaving a will, the survivor has no automatic right under the intestacy rules to inherit any part of his or her partner’s estate. This is the case no matter how long they lived together and even if they had children together.

It is sometimes possible, under family provision legislation, for a surviving cohabitant to make a claim at court against the estate of their partner, if no provision (or inadequate provision) has been made for them either by will or by operation of the intestacy rules. However, a cohabitant is not treated in the same way as a legal spouse. A surviving spouse is entitled to seek such financial provision as it would be reasonable in all the circumstances of the case for a spouse to receive, whether or not that provision is required for maintenance. A cohabitant may only seek reasonable provision for their own maintenance.

The High Court in Akhter v. Khan dealt with the question of whether the couple’s Nikah (a religious ceremony) which took place in England, in the absence of a civil registration of the marriage, was a valid marriage, a void marriage, or a non-marriage. The court confirmed that a Nikah (a religious) ceremony did not create a valid marriage under the laws of England and Wales. In the particular factual scenario of the case, the court determined that the marriage was void, falling under Section 11 of the Matrimonial Causes Act 1973 (MCA 1973). The wife was therefore entitled to a decree of nullity and could apply for financial relief. It does not necessarily follow that another Nikah ceremony would be considered a void marriage; each case will turn on its own facts.

Relationship breakdown

Couples who are not legally married, including couples married only in an unregistered and unrecognised religious marriage ceremony in the UK, cannot petition in an English court for divorce and consequent financial provision. They are also unable to have the marriage annulled because they do not have a marriage that is void under English law. If their relationship breaks down, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce, dissolution of a civil partnership or nullity.

In 2018, the Family Court ruled that a Nikah (religious) marriage of a specific couple was a void marriage and not a “non-marriage.” The Government appealed. In a judgment published in February 2020, the Court of Appeal allowed the appeal and held that there had been no ceremony in respect of which a decree of nullity could be granted.

In 2018, the Family Court delivered its decision in the case Akhter v. Khan and The Attorney General and held that the union in question was a void marriage and that the wife was therefore entitled to a decree of nullity.

The Government appealed. In a judgment published in February 2020, the Court of Appeal allowed the appeal and held that, in this case, there was no ceremony in respect of which a decree of nullity could be granted.

The Court concluded:

• on the first issue, “that there can be ceremonies which do not create a marriage, or even a void marriage, within the scope of the [Marriage Act 1949] and the [Matrimonial Causes Act 1973] and which do not, therefore, entitle the parties to a decree of nullity.”
• on the second issue, that the December 1998 ceremony did not create a void marriage because it was a non-qualifying ceremony:

The parties were not marrying “under the provisions” of Part II 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.

If the couple married in a mosque in England and Wales that is a registered building pursuant to section 26(1)(a) of the Marriage Act 1949 (MA 1949), then the marriage is valid under English law. MA 1949, s. 41(1) provides that any proprietor or trustee of a building that has been certified as required by law as a place of religious worship may apply to the superintendent registrar of the registration district in which the building is situated for the building to be registered for the solemnisation of marriages.

If, however, the couple simply entered into an Islamic Nikah contract in the jurisdiction of England and Wales without complying with the requirements of MA 1949, then this is not a valid marriage under English law and cannot be put as the start date of the marriage for the purpose of divorce proceedings. The couple have merely been cohabitants until the date of their civil marriage.

With effect from 2 March 2015, all couples intending to marry must give 28 days’ notice. Part 4 of the Immigration Act 2014 established a scheme for the referral of proposed marriages and civil partnerships to the Secretary of State, who must decide whether to investigate whether the proposed marriage or civil partnership is a sham. All proposed marriages or civil partnerships where one party is, or both parties are, not exempt must be referred to the Secretary of State. Exempt persons include, among others, those who are exempt from immigration control and those who have a relevant visa. Where a decision is made to investigate the relationship, a couple referred to the Home Office may be required to wait 70 days before marrying.

Conclusion

The problems that can arise when parties have had a religious ceremony in this country but have not had a civil ceremony have been highlighted by case law in recent years, including The Attorney General v. Akhter and Khan [2020] EWCA Civ 122 (see above for details).

To be legally valid, a religious marriage (other than marriage according to the rites and ceremonies of the Church of England and the Church in Wales, and Jewish and Quaker marriage) must generally take place in a registered building.  Those who wish to celebrate their marriage in a place of worship, or elsewhere, that has not been registered for marriage must go through an additional civil ceremony in order to be legally married.

Marriages that take place overseas will be recognised in the UK in specified circumstances.

References:

The Law Commission, in their paper “Celebrating Marriage: A New Weddings Law” (2022).

Resolution: Non-legally binding marriages: national and international perspectives in practice