Is a defective (sharia) wedding effective in English law?

The Family Division has decided a very interesting case on the issue of how defective a wedding ceremony is allowed to be before it becomes so hopeless that it fails to constitute a valid marriage under the Marriage Act 1949.

In MA v JA and the Attorney General [2012] EWHC 2219 (Fam) (27 July 2012) a British couple of Bangladeshi parentage were married in 2002 at a mosque in Middlesbrough. The mosque had been registered under s 41 of the Act for solemnisation of marriages in 1992 and a number of people had been certified as “authorised persons”  under s 43, including the chairman of the mosque and the treasurer – but not, at the point when the parties were married, the imam. MA made the arrangements with the chairman and booked the date. Knowing nothing about the need for notice or certification he simply assumed that everything was OK, relying on the chairman and the imam to tell him what was needed.

The ceremony, which took place in August 2002, was conducted by the imam and the chairman of the mosque was one of the wedding-guests. The parties were asked whether there was any reason why they could not marry and whether they both freely consented to marry. They signed a register book and were given a document signed by the imam and headed Contract of Marriage, which certified that the “Marriage Contract was concluded according to Islamic Sharia” and that the marriage was “proposed by” MA and “accepted by” JA in the presence of two named witnesses, one of whom was the chairman. The imam assured them afterwards that they were married and that there were no further formalities to be met; however, the marriage had not been registered in accordance with the 1949 Act, nor did the couple receive a marriage certificate.

The parties entered on married life without giving the matter further thought; but about seven years later, as a result of attending other marriages and (presumably) seeing things done strictly according to the Act, they began to suspect that something might be wrong. So Mrs A went along to the Register Office for a certificate, only to be told that her marriage was not registered.

The couple sought a declaration pursuant to s 55(a) Family Law Act 1986 “that the marriage was at its inception a valid marriage”, on the grounds that it had been concluded according to sharia law and that they genuinely believed that they were properly married in accordance with English law and had accordingly lived together as husband and wife.

The Attorney intervened to oppose the application, submitting that the ceremony was of no effect and had resulted in a “non-marriage” because it failed to comply with the requirements of the Marriage Act 1949 and/or was conducted outside the Act’s provisions. Counsel for the Attorney asserted that the purported marriage was void under s 11(a)(iii) Matrimonial Causes Act 1973 because the parties had “intermarried in disregard of certain requirements as to the formation of marriage”. Alternatively, it was a “non-marriage” because the ceremony did not even purport to be of the kind contemplated by the 1949 Act. Counsel also argued that it would be contrary to public policy for the rules governing the formation of marriage to be circumvented in such a way.

So the issue was whether a ceremony that did not comply with the requirements of the 1949 Act could result in:

  • a marriage that was entitled to legal recognition as valid; or
  • a void marriage; or
  • something that was of no legal effect at all.

Moylan J started off from the position

“… that both the petitioner and the respondent intended to contract a marriage which was valid under English law and believed that they had done so as a result of the ceremony at the mosque” (para 12).

The imam had told the court that at the time of the disputed ceremony he believed that he was performing a religious marriage only; and though he knew about the requirements for a civil marriage he would not have discussed them with the parties at all – presumably because he was not then an “authorised person”. The parties contended that there was a presumption in favour of marriage, that their marriage was not void for any of the grounds in s 11 Matrimonial Causes Act 1973, that they had not “knowingly and wilfully” married in disregard of the 1949 Act and that the ceremony had taken place in a registered building in the presence of the chairman – who certainly was an “authorised person”.

For Moylan J, the central issue was whether what took place had been sufficiently within the scope of 1949 Act for the marriage to be capable of being valid under English law (para 82), given that the notice and certification requirements of the Act had not been fulfilled (para 83). So was the ceremony potentially within the scope of the 1949 Act and therefore capable of producing a valid marriage?

He rejected the contention that to make the declaration sought would be “manifestly contrary to public policy” as set out in s 58(1) Family Law Act 1986: on the contrary, his view was that

“… it is in the public interest that the rights and obligations consequent on marriage are provided to and imposed on those who ‘marry’ in this jurisdiction.  It is not in the public interest that such obligations can be too readily avoided.  This supports the conclusion that the 1949 Act net should not be cast too narrowly” (para 95).

In the present case:

  • the parties had intended to contract a valid marriage under English law;
  • the ceremony had clearly been a ceremony of marriage;
  • the chairman, an “authorised person”, had been present and acted as a witness;
  • the purported marriage had been solemnised in a registered building;
  • the ceremony had been sufficient “as a ceremony” to constitute a valid marriage and the fact that it had been a sharia ceremony did not put it outside the scope of the 1949 Act because under s 26(1)(a) parties to a marriage in a registered building were permitted to adopt such form or ceremony as they “see fit to adopt”; and
  • there was no statutory provision that would result in a marriage otherwise within the scope of the 1949 Act being void because it had been solemnised without notice or certificate unless the parties had “knowingly and wilfully” married without having complied with those requirements – which was evidently not the situation in the present case (paras 96 – 100).

So he concluded (at para 101) that the ceremony had, in fact, been within the scope of the 1949 Act and had created a potentially valid marriage. Moreover, because the parties had not “knowingly and wilfully” married in breach of the requirements of s 49 of the Act – the notice and the certificate – the marriage was not void. In short, the ceremony had therefore created a marriage that was entitled to be recognised as valid under English law and the declaration sought was granted.

Comment: This is a very interesting case which, at first blush, might be thought of as being about the interaction of sharia with secular law. But my own reading is that the sharia issue is merely tangential – and what it is certainly not is: “Judge Recognises Sharia, Shock, Horror”.

The point at issue, as I stated at the beginning, is this: precisely how defective is a religious wedding ceremony of any kind allowed to be before it becomes completely ineffective in terms of the 1949 Act? Pending any possible further action by the Attorney, the answer to be drawn from MA seems to be that if a couple gets married in a registered building and does so in good faith and an “authorised person” is present – even if that person is not officiating – then the court will be very reluctant indeed to declare the marriage invalid or void.

And it is worryingly easy to make a mess of the legal requirements even in the best-regulated denomination, as the following (true) story from my own experience as a reader in an Anglican parish in south London illustrates.

A summer Sunday morning, Vicar on holiday, visiting celebrant. A couple, one of whom was resident in the parish, was due to be married the following week at another church and the banns were to be called for the third time. We carefully left the banns book with the notices on the altar and alerted the celebrant beforehand that he needed to read them with the notices.

As it happened, I was directing the choir that morning in the absence of our regular director of music and concentrating on doing that rather than on the liturgy, so I was somewhat distracted and missed the fact that the visiting priest simply forgot the banns. I only realised what had happened when, during coffee after the service, our other reader – who had preached that morning – stood on a pew and proclaimed in stentorian tones, “I publish the banns of marriage between [John Doe and Richenda Roe]…” Then she got the visitor to sign the book: end of problem.

But if she had not noticed or she had not had the presence of mind to read them herself, what then? Not, presumably, a hurried application for a special licence because there would not have been sufficient time to get one. And, strictly speaking, does reading the banns over post-worship coffee constitute publication “during morning service” for the purposes of s 7(1) Marriage Act 1949? Or should we have reconvened and recited Matins so that we had a legitimate morning service at which to read them? Answers on a postcard – or leave a comment below!

1 thought on “Is a defective (sharia) wedding effective in English law?

  1. Pingback: Calling the banns in Scotland: a curiosity for canon law anoraks | Law & Religion UK

Leave a Reply

Your email address will not be published. Required fields are marked *