LECTURE 02

MARRIAGE (VOID MARRIAGE)

INTRODUCTION
Since the 1960s, there has been a dramatic shift in behavior and social
attitudes toward marriage. Approximately half the adult population of the UK
is married, but around a quarter of unmarried adults now live in a cohabiting
relationship. Some of these couples may eventually marry, but for many
people, there is no longer a strong social pressure to marry
The basic rule of English law is that a marriage can be created between any
two adults who comply with the stipulated formal requirements of marriage
and who have the necessary legal capacity.
Historically Family Law has been subject to the influence of Canon law. This is
the law of the church. As religion became less prominent in English law it also
became apparent by the 18th Century that the property classes were losing out
on the status and financial opportunities that marriage could bring when their
impressionable daughters or raffish sons were marrying individuals in secret
and without the consent of their parents. These marriages were termed
clandestine marriages and the legislative response, the Marriage Act 1753
(Lord Hardwicke’s Act), required marriages to be conducted by Anglican Rites
(the rules of the Church of England), paved the way for the formalities, as
amended, that now exist for a valid marriage to exist today.

FORMAL MARRIAGE
In the 18th century, Blackstone’s Commentaries on the laws of England
described the legal impact of marriage at common law:
By marriage, the husband and wife are one person in law; that is the very being
or legal existence of the woman is suspended during the marriage, or at least
incorporated or consolidated into that of the husband ...
In the case of Hyde v Hyde (1866), Lord Penzance described marriage as:
the voluntary union for the life of one man and one woman to the exclusion of
all others.
These 18th and 19th-century statements no longer reflect the contemporary
legal institution of marriage. The most recent reform was in 2014 with the
implementation of the Marriage (Same Sex Couples) Act 2013. Even before
that, however, in Bellinger v Bellinger [2001], Thorpe LJ (dissenting) pointed
out that the world had changed dramatically since 1866:
We live in a multi-racial, multi-faith society. The intervening 130 years have
seen huge social and scientific changes … Illegitimacy with its stigma has been
legislated away: gone is any social condemnation of cohabitation in advance of
or in place of marriage. Then marriage was terminated by death: for the vast
majority of the population, divorce was not an option. For those within whose
reach it lay, it carried a considerable social stigma that did not evaporate until
relatively recent times. Now more marriages are terminated by divorce than
death. Divorce could be said without undue cynicism to be available on demand
… Marriage has become a state into which and from which people choose to
enter and exit. Thus I would now redefine marriage as a contract for which the
parties elect but which is regulated by the state, both in its formation and in its
termination by divorce, because it affects status upon which depend a variety
of entitlements, benefits, and obligations.

VOID AND VOIDABLE MARRIAGES

English law requires parties to a marriage to comply with the correct
formalities and to have the legal capacity to contract a marriage. Where these
requirements are not met, the marriage is void and a party may seek a decree
of annulment.
The law also sets out certain circumstances which may render the marriage not
void but voidable. The distinction between void and voidable marriages was
explained by Lord Greene MR in De Reneville v De Reneville [1948]:
A void marriage will be regarded by every court in any case in which the
existence of the marriage is in issue as never having taken place and can be so
treated by both parties to it without the necessity of any decree annulling it; a
voidable marriage will be regarded by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of
competent jurisdiction.
In simple words; Void marriages are those which are deemed by a court never
to have existed. A voidable marriage is deemed to have existed until one of the
parties has sought to annul it on one of the specified grounds.
THREE MAIN DIFFERENCES BETWEEN A VOID AND VOIDABLE MARRIAGE
 1. A decree of nullity can be pronounced about a void marriage at any
time, even after the death of the parties. In contrast, a decree can only
be granted annulling a voidable marriage during the lifetime of both
parties.

2. If the marriage is void, no valid marriage exists, whereas, if the marriage

is voidable, it is valid unless and until annulled.

3. If the marriage is void, any ‘interested person’ may take nullity

proceedings. If the marriage is voidable, only the parties to it may take
proceedings to have it annulled.

THE GROUNDS FOR A VOID MARRIAGE

The grounds for a void marriage are set out exhaustively in s.11 of the
Matrimonial Causes Act 1973 (MCA 1973), as amended most recently by the
Marriage (Same Sex Couples) Act 2013.
A marriage celebrated after 31st July 1971 shall be void on the following
grounds only, that is to say—
(a) that it is not a valid marriage under the provisions of the Marriage Acts
1949 to 1986 (that is to say where—
(i) the parties are within the prohibited degree 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) 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 (c) of this subsection a marriage is not polygamous if at its inception
neither party has any spouse additional to the other.
PROHIBITED DEGREES
The MA 1949 Schedule 1 (as amended) sets out a list of relatives whom a man
may not marry. A corresponding list of prohibitions is set out for women. The
prohibited degrees include half-blood relationships.
The following points should be noted about the statutory list of the prohibited
degrees of marriage.
1. If a child is adopted he or she remains within the same prohibited
degrees in relation to his or her natural parents and other relatives as if
he or she had not been adopted (Adoption Act 1976, ss.39(1), 47(1)). In
addition, an adoptive parent and the child he or she adopts are within
the prohibited degrees (Adoption Act 1976, s.39(1)) but there is no
other prohibition arising out of adoption. A man may therefore marry his
adoptive sister or any other female adoptive relation and vice versa.

2. The list of prohibited degrees includes not only relationships of

consanguinity (i.e. where there is a blood relationship between the
parties) but also certain relationships of affinity (i.e. relationships
created by marriage).
Marriage to a step-child is only permitted if two conditions are satisfied: at the
time of the marriage both of the parties must be over 21 and the step-child
must not have been a child of the step-parent’s family at any time when the
step-child was under 18.
MINIMUM AGE
A marriage is void if either party is under 18.
This is an absolute rule for a person domiciled in England and Wales and
cannot be avoided by marrying abroad in a country where marriages with
those under 18 are permitted. In Pugh v Pugh [1951], therefore, a domiciled
Englishman who married a 15-year-old Hungarian girl in Austria (so that the
marriage would have been valid in both Austria and Hungary, where the girl
was domiciled) was regarded in England as a party to a void marriage. Pearce J
held that this was an absolute rule for any English person: that they may not
marry when they are under 16, nor marry anyone under that age. This case
was decided at a time when a person could marry at the age of 16 or 17 with
parental consent. The Marriage and Civil Partnership (Minimum Age) Act
2022 raised the minimum age for marriage and civil partnership to 18.
DEFECTIVE FORMALITIES
Legal regulation of the actual ceremony of marriage began with the enactment
of Lord Hardwicke’s Marriage Act 1753. Prior to this Act, no formalities were
required for the formation of a valid marriage. Provided that there was an
agreement to marry, or a promise to marry followed by sexual intercourse, the
law would recognize the existence of marriage.
Secretive ‘clandestine’ marriages were a particular concern for wealthy
families who wished to discourage their children from entering into marriages
without their parents’ knowledge or approval. As a result, the 1753 Act
introduced requirements for formal ceremonies, witnesses, and registration.
The original legislation required a Church of England ceremony, although
Quakers and Jews were exempted from this requirement. Of course, the law
now provides a way for other religious and secular ceremonies to be
recognized, but there remain differences between the requirements for
Church of England marriages, and those conducted according to other
religions, or civil marriages conducted without a religious element. This
difference between religious and non-religious weddings was recently
considered in R (on the application of Kate Harrison and others) v Secretary
of State for Justice [2020] where the court confirmed that, although the
current law of marriage fails to give legal recognition to humanist marriages
and this was a breach of the applicants’ human rights, the current climate for
reform meant that any discrimination could be justified at present.
The law governing marriage provides rules concerned with three elements:
what people must do before (marriage preliminaries); how and where the
ceremony must take place; and how the marriage must be registered. These
rules are contained in the Marriage Act 1949 as amended (MA 1949). The
position is complex; indeed, the Law Commission said that it is:
not understood by members of the public or even by all those who have to
administer it.
More recently, the Law Commission has called the rules out of date, complex,
and uncertain. It recommends reform of the law to give people greater choice
within a simpler legal framework (Law Commission, Getting Married: a Scoping
Report 2015).
Subsequently, in September 2020 the Law Commission announced their wide-
ranging consultation, which is asking for views on the choice of wedding venue,
the form that any wedding ceremony might take, and whether new rules will
result in reducing the current costs of a wedding.
The 1949 Act outlines when intentional non-compliance with certain
formalities will render a marriage void and when non-compliance will not
affect the validity of the marriage. However, as the Law Commission states,
there are certain gaps in the law where the consequences of a failure to
comply are not clear.
1- Formalities re: preliminaries to the marriage ceremony
Certain preliminary steps must be observed before a marriage can be
celebrated. These preliminaries aim to provide a measure of publicity for the
marriage and to give time in which objections to the marriage (e.g. because it
is bigamous) may be made. The form they take depends on whether a Church
of England ceremony or some other ceremony, civil or religious, is intended.
2- Church of England (Anglican ceremony)
Anglican marriages (‘church weddings’) may be preceded by banns,† which are
read out on successive Sundays. The parties may marry after the third reading.
Alternatively, parties may obtain a common license from the church
authorities or a special license issued on behalf of the Archbishop of
Canterbury. The latter enables the wedding to take place in any venue and at
any time. Partners of the same sex may not marry in a Church of England
ceremony.
Banns: a technical word for the formal and public declaration of an intention to
marry.
3- Civil and non-Anglican religious ceremonies
The parties have to obtain a superintendent registrar’s certificate. Both parties
must give notice to the superintendent registrar of the district of their
intention to marry. Along with this, the parties have to give details of their
name, marital status, place of residence, occupation, and nationality. This does
not need to be done as a couple but must be done in person. Once this
information is collected a waiting period follows. This waiting time can be
reduced if there is a compelling reason. This procedure has been standardized
to try to tackle the problem of ‘sham’ marriages.† As the parties have to meet
the superintendent personally, there is an opportunity for superintendents to
raise any suspicions as to the possibility of the marriage being a sham.
A ‘sham’ marriage is one where a couple, perhaps for immigration purposes,
marries so that one party gains residence in the UK.
4- Formalities re: the marriage ceremony
The principal categories of marriage ceremony in English law are the following.
Anglican marriages. Such marriages can take place in a place of worship after
any of the ecclesiastical preliminaries have been observed or after a
superintendent registrar’s certificate has been issued. The marriage must be
celebrated by a member of the clergy.
He or she is entitled to refuse to marry any person whose former marriage has
been dissolved if the former spouse is still living (Matrimonial Causes Act
1965, s.(8)2). Same-sex marriages are not permitted according to Church of
England rites.
Civil marriages.† Such marriages must be secular and take a simple form. The
parties declare that they know of no lawful impediment to the marriage and
each must call upon those present to witness that they take the other as their
lawful wedded husband or wife. The ceremony takes place in the Register
Office or other place ‘licensed for marriage ceremonies’, with open doors, and
two or more witnesses must be present. It must be conducted by a registrar or
superintendent registrar. (In a civil marriage, no declarations or procedures of
a religious nature are permitted.)
Marriages in a registered place of religious worship. Parties to such marriages
must comply with civil preliminaries. The building in which the ceremony is to
take place must be registered for the solemnisation of marriages as ‘a place of
meeting for religious worship’. The Supreme Court held in R v Registrar
General of Births, Deaths and Marriages [2013] that religion can be described
as ‘a belief system going beyond sensory perception or scientific data, held by
a group of adherents, which claims to explain mankind’s place in the universe
and relationship with the infinite, and to teach its adherents how they are to
live their lives in conformity with the spiritual understanding associated with
the belief system’ and therefore a ‘place of meeting for religious service’ is a
place of meeting for religious worship. In this case, the Registrar was ordered
to record the Church of Scientology as a place of religious worship. Similarly,
Sikh and Hindu temples and Islamic mosques are entitled
to be registered for the solemnization of marriage. If a Registrar is not present,
the celebrant must be an ‘authorized person’ to carry out marriages. The form
of the ceremony is a matter for the parties and the religion controlling the
building, although the parties must at some stage declare, as in civil marriages,
that they know of no lawful impediment and each must state that they call
upon those present to witness that they take the other party to the marriage
‘to be my lawfully wedded wife (or husband)’. Marriages between people of
the same sex may be celebrated in a place of religious worship, except in the
Church of England, if the religious organization and the individual conducting
the ceremony agree by opting into the process.
Quaker and Jewish marriages.† These were excepted from the provisions of
Lord Hardwicke’s Act. Although civil preliminaries must be completed, the
celebration of Quaker and Jewish marriages is governed solely by the rules of
those religions. Quakers are members of the Religious Society of Friends, a
350-year-old Protestant Christian group distinguished by ‘peaceful principles
and plainness of dress and manners’.
5- Places licensed for marriage ceremonies
The Marriage Act 1994 (MA 1994) amends the MA 1949 and provides that
designated public places may be licensed by local authorities for the ceremony
of marriage. The 1994 Act also provides that marriages may be solemnized in
registration districts in which neither party resides. The Marriages (Approved
Premises) Regulations 1995 stated that the ‘premises’ must be a permanently
immovable structure comprising at least a room, or any boat or other vessel
which is permanently moored’. The ceremony cannot be religious.
Then, in 2021, in an attempt to relax these requirements, new regulations
came into force which, from 1 July 2021 until 5 April 2022, have enabled
couples to marry in civil ceremonies outdoors on the grounds of approved
premises. The Government then undertook a public consultation to determine
whether this change should become permanent and 96 percent of
respondents backed making this change permanent. Regulations have since
been laid that come into force in April 2022 and which will legalise these
outdoor civil weddings and partnerships indefinitely. The rules for religious
ceremonies will be made in due course after the same consultation found 93
percent of respondents supporting the change.
All marriages, except Jewish and Quaker marriages and those that are
conducted under special or Registrar General’s license, must take place
between 08.00 and 18.00 (GMT). However, failure to observe these
requirements will not invalidate the marriage.
A failure to observe the necessary preliminary formalities will usually mean
that a marriage ceremony will not be permitted to proceed. However, if a
marriage ceremony does take place (and it is a sufficient ceremony so that it is
not a ‘nonmarriage’ (Hudson v Leigh [2009], the marriage will often be valid.
The MA 1949 ss.24 and 48 specifically enact that certain defects, including
failure to acquire the necessary consents, will not invalidate a marriage. In
ss.25 and 49 it sets out those defects which will invalidate a marriage, related
to the ceremony taking place (a) in a venue different from the one set out in
the notice or in an unlicensed venue, (b) without proper notice or (c) without
an approved celebrant, but only where the parties ‘knowingly and wilfully’
attempt to marry in contravention of the requirements. There are other
formalities, for which the consequences of failure to comply are not clear. So,
for example, while a form of words or vows is prescribed in the statute, the
consequences of failing to include them in the ceremony are not clear. This is
one of the reasons that the Law Commission is reviewing the law.
Two examples of how the courts treat formalities are:
In Gereis v Yacoub [1997] the court held that, even though the parties had
lived together as husband and wife after the ceremony, their knowledge of the
defective formalities (no notice to the superintendent registrar, marriage not
in a registered building and conducted by an unauthorized person) meant the
marriage was void.
On the other hand, in Chief Adjudication Officer v Bath [2000], the appellant
had been refused a widow’s pension on the grounds that her 37-year marriage
was void as the Sikh temple in which she had married was not a registered
building for the purpose of celebrating marriages. The Court of Appeal held
that, as there was a common-law presumption that a couple who claimed to
be husband and wife, following long cohabitation, had married (unless the
contrary were proved), it would be wrong to place the appellant, who had
gone through a ceremony, in a worse position than someone who could not
point to any ceremony at all. Furthermore, as both she and her husband had
been unaware that the temple was not registered, they had not ‘knowingly
and wilfully intermarried’ as provided by s.49 of the MA 1949. Had they
known, the court concluded, the marriage would have been void.
ONE OR MORE PARTY ALREADY MARRIED
A marriage is void if at the time of marriage, either party is lawfully married to,
or civil partners with, another party. The marriage remains void even if the
parties believe on reasonable grounds that the other party to the marriage or
civil partnership was dead and if a defense to a charge of bigamy was
successfully pleaded. Parties who have reasonable grounds to believe that the
other party to the marriage is dead are advised to seek a decree of divorce or a
decree of presumption of death and dissolution of marriage within s.19 MCA
1973.
POLYGAMOUS MARRIAGE
A polygamous marriage entered into after 31 July 1971 is void if either party
to the marriage was at the time domiciled in England and Wales.

SUMMARY
The grounds for a void marriage are set out in s.11 of the MCA 1973. If the
parties are within the prohibited degrees of relationship or either party is
under 16 the marriage will be void. If there are defective formalities or one of
the parties is already married or in a civil partnership this will also void the
marriage. Finally, a marriage will be void if polygamous.