Non-legally binding marriages, or non-recognised marriages which these ceremonies are commonly referred to, have been a point of contention when dealing with religious marriages and the ability to make a claim for financial relief.
Validity of religious marriages conducted in England and Wales
The main issue for questionable religious marriages is the legal status of the ceremony.
As a lawyer, we must consider whether there is:
a) A valid marriage that comes under our marriage laws, mainly the Marriage Act 1949 and satisfies all the required formalities.
b) A void marriage which also comes under the 1949 Act but fails to satisfy all the necessary formalities and is therefore void under s11 Matrimonial Causes Act 1973.
This often occurs when the parties reasonably believe they have done everything necessary under the Marriage Act 1949 but have not.
For void marriages, the parties are entitled to the same family law financial remedies that divorcing couples have in valid marriage.
c) Or is it a ceremony that falls completely outside of the legal framework, and is considered to be a non-recognised marriage, which have more recently been referred to as either a non-qualifying ceremony or non-legally binding ceremony.
In such circumstances, the parties are not entitled to any of the legal protections of void or valid marriages. They instead have to reply upon confusing and expensive legal remedies flowing from contract, property, or trust law which lack the discretionary powers a judge in the family court has.
IMPORTANCE OF STATUS
If the marriage is held to be valid or void, the financially weaker party can apply for financial relief from the family court. If not, then they are left to rely on the mixture of property, contract, and trust law available to cohabitants which can result in a lack of financial security, inadequate pension provision and a lack of automatic inheritance rights.
HOW COULD COHABITATION REFORM ASSIST THOSE IN NON-LEGALLY BINDING MARRIAGES?
A main feature of the workshop was to consider how cohabitation law reform could assist those couples who seek to have a non-recognised marriage (i.e. non-legally binding ceremony) despite the efforts of many in raising public awareness of the consequences, usually for the financially weaker party, in the event the relationship breaks down or when the financially stronger party dies and has not made adequate financial provision for the surviving party in their Will and the lack of pension rights.
It is to be noted, that in non-legally binding ceremonies involving a religious ceremony, the couple and their community will see them as being married and not as cohabitants. While some cohabitants seek legal recognition; others intentionally cohabit to avoid legal rights and obligations. Some couples in religious only marriages want their marriage to be recognised by the law, while others have deliberately chosen the option of non-recognition. Where this autonomy flows from an informed choice, it is argued, that it should be respected.
Under The Law Commission’s 2007 report on “Cohabitation: The Financial Consequences of Relationship Breakdown”, it recommended that to be eligible for its proposed scheme of financial relief, cohabitants must either have had a child together or have lived together for several years, suggested to be between 2 and 5 years.
In The Law Commission’s 2022 report, “A New Weddings Law”, non-legally binding religious marriages would still be permitted without penalty or mandatory requirement for a civil registration. There is a school of thought that the eligibility criteria should be extended to cover those who have undergone a non-legally binding ceremony of marriage, either faith based or non-faith based to provide equity. This is because the ceremony would have been an overwhelming event of importance to demonstrate the parties’ commitment to one another.
CLIENTS WITH INTERNATIONAL CONNECTIONS
It is very important to ensure that a client with international connections takes foreign legal advice to decide which jurisdiction is best to deal with the divorce. The foreign legal system might not follow strict Islamic or other religious principles; be influenced by the geographical customs and culture; or apply different rules of law depending upon if one identifies themselves as belonging to a particular religious faith or not.
HOW ABOUT MARRIAGES THAT MAY NOT BE LEGALLY BINDING OUTSIDE ENGLAND AND WALES?
In Tousi v Gaydukova [2023] EWHC 404 (Fam), an Iranian national and a Ukrainian national had an Iranian marriage in the Iranian embassy in Kyiv. As Ukraine treats embassies as being part of the “host state”, the marriage had to comply with Ukrainian law. The single joint expert was clear there was no valid marriage. Mostyn J decided that despite the couple having over 20 years of genuine belief in good faith that a valid marriage had been created, because no relief would be available in Ukraine, there should be no relief in England and Wales. The husband is now appealing the decision.
Mostyn J criticised the current law as follows at paragraph 90 of his judgment:
“These are not rare and remote outliers. There are many religious (usually Islamic) marriages solemnised in private dwellings in gross disregard of our laws (or the host country’s laws) concerning the due form for such ceremonies… the situation is a disreputable mess and urgently needs to be definitively clarified both substantively and procedurally”.
If you would like to discuss the issues raised in this blog, please do contact us.
