When is a marriage not a marriage? By guest blogger Laura Guillon
February 14, 2012 10 comments
Getting married is meant to be an exciting, romantic time and no one wants to think about what would happen if it all goes wrong. But how would you feel if your marriage broke down and you found out that you had never been legally married in England in the first place?
Unfortunately, this state of affairs is not that uncommon. If a couple have married abroad or undergone a religious ceremony (covered in my next post) they might not have taken the essential steps to ensure their union is enshrined in English law.
Requirements for a valid English marriage
It is a legal requirement to give notice in advance of a marriage. The notice will be publicly displayed for fifteen days after which time the authority for your marriage can be granted. It will be valid for one year but if you decide to change venues a new notice must be given.
However, if you are getting married in the Church of England or the Church of Wales you do not usually have to give notice of the marriage. If you are having a civil marriage then both of you will need to go to your local Register Office to give notice. This must be done by both of you in person; it cannot be done on your behalf by someone else. You will be required to give certain information when giving notice; including your name, address, date of birth and nationality. Proof of identity needs to be in the form of a passport or driver’s licence. If one party has been married before they will have to show documentary evidence that that marriage has ended. This can be in the form of a Decree Absolute or a death certificate, if the party concerned is a widow or widower.
You both need to have lived in the area in which you will be giving notice for at least seven days immediately before giving notice. You may marry once you have reached the age of 16, but will require parental consent if you are under 18.
A marriage can take place in the following places:
- A Register Office
- A Church of the Church of England, Wales and Ireland, or Presbyterian and Roman Catholic Churches.
- A Synagogue or any other private place if both parties are Jewish
- A Meeting House if one or both partners are either members of the Society of Friends or are associated with the Society by attending meetings
- Any other religious building provided that the person marrying the couple is registered by the Registrar
- Premises approved by the local authority – applications for approval must be made by the owner or trustee of the premises and not the parties wishing to marry. The premises must be regularly open to members of the public so private home are not likely to be approved. Nor will approval be given for open air venues such as beaches or golf courses. The premises will need to be a permanently built structure
- A place where one partner is seriously ill and not expected to recover
- The home of one of the partners if the partner is housebound, for example, has serious disabilities or is agoraphobic
- A hospital, if one of the partners is unable to leave or is detained there as a psychiatric inpatient
- A prison, if one partner is a prisoner.
The marriage must be carried out by a person authorised to register marriages, or by another individual provided it is in the presence of the person authorised to register the marriage. The marriage must then be entered into the marriage register and be signed by both parties, two witnesses and the person that conducted the marriage. If that person who conducted the ceremony is not authorised to register the marriage, then the person who is authorised to register the marriage must sign it as well.
When is a marriage void?
There is a difference between a void and voidable marriage. Lord Penzance defines marriage in Hyde v Hyde  LR 1 P&D 130 as “the voluntary union for life between one man and woman to the exclusion of all others”. This definition appears to have been reflected when drafting legislation for circumstances when a marriage will be void or voidable. If the marriage is void it is treated as never having existed. A marriage will be void in the following situations:
- The parties are too closely related to each other i.e. they are a parent (including adoptive or former adoptive parent), a daughter or son (including adoptive or former adoptive daughter or son), a sibling or half sibling, a niece, nephew, aunt or uncle, or a grandparent
- Either party was under the age of 16 at the time that the marriage ceremony took place
- The parties have had a marriage ceremony in disregard of certain requirements as to the formation of the marriage, i.e. the requirements for a valid English marriage as stated above have not been complied with
- At the time of the marriage ceremony either party was already married
- That the parties are not respectively male and female
- In the case of a polygamous marriage entered into outside of England that either party was at the time of the marriage domiciled in England. However, the marriage will not be deemed to be polygamous at its inception if at that time neither party had another spouse.
If the marriage is void a decree is not needed to end it, as it never existed. However, a decree is usually obtained as one is needed for a financial order to be made.
When is the marriage voidable?
If a marriage is voidable it will be treated as being valid and subsisting until a decree is obtained. The person applying to have the marriage voided will apply for a decree of nullity which annuls the marriage. The person making the application is the Petitioner in the proceedings and the other spouse is the Respondent. A marriage will be voidable in the following situations:
- Non-consummation either due to one party’s incapacity or wilful refusal
- A lack of consent, whether this be because one party was under duress, mistake or an unsoundness of mind at the time
- One party was suffering from a mental disorder of such a kind that made them unfit for marriage
- At the time of the marriage one party had a venereal disease in a communicable form and the Petitioner was not aware of it
- At the time of the marriage the wife was pregnant by someone other than the husband and the husband was not aware of it
- After the date of the marriage one party was issued with an interim gender recognition certificate.
A voidable marriage will exist until such time as the decree of nullity is obtained. The Petitioner will be barred from obtaining a decree of nullity if the Respondent can satisfy the Court that the Petitioner knew that the marriage could be avoided but conducted him or herself in such a way as for the Respondent to reasonably believe that they would not seek to do so. The Petitioner may also be barred from obtaining a decree of nullity if it would be unjust to the Respondent to do so.
Generally the Petitioner must apply for the decree of nullity within three years of the date of the marriage. However, this does not apply to cases of non-consummation, or in cases in which an interim gender recognition certificate has been issued. The three year bar is not an absolute bar as the Petitioner may apply for leave of the Court to extend this time limit.
Why is it important to distinguish between a void and voidable marriage?
It can be an important distinction in relation to widows’ pensions. If a marriage is void it never existed therefore a widow will not be entitled to their spouse’s pension, as technically he or she was never their spouse. However, if the marriage is voidable then the marriage existed and a widow will be entitled to their spouse’s pension provided the marriage has not been annulled. This distinction was looked at in the case of Chief Adjudication Officer v Bath  1 FLR 8 which will be discussed in more detail in my next post, on religious marriages.
Any person may seek a declaration that a marriage is void, whereas only the parties to the marriage may seek a declaration that the marriage is voidable. This reflects the grounds upon which a marriage may be void or voidable. The grounds upon which a marriage may be declared void are issues which reflect public policy, therefore any person can seek a declaration of nullity. However, the grounds upon which a marriage is voidable are not a matter of public policy, but concern where there is a problem in the marriage and one spouse wishes to have it annulled.
Laura Guillon is the principal trainee solicitor at Stowe Family Law, assisting the Senior Partner. Laura is half French and speaks French fluently. Her interest is in ancillary relief, particularly cases that have an international element.
Image credit: Edward Munch’s Separation
February 14, 2012
Categories: Family Law