Following the launch of “Religion and Marriage Law: The Need for Reform”, Professor Russell Sandberg has kindly provided this additional note
Would reform of the law on validity help mitigate the problem of unregistered religious marriages?
In my new book, Religion and Marriage Law: The Need for Reform, I argue that the law relating to marriage in England and Wales is outdated and leads to unfairness. There are now forms of relationship that exist outside the legal framework.
The book focuses on (1) ‘non-religious marriages’: wedding ceremonies conducted by belief organisations and independent celebrants that are not legally recognised under the Marriage Act 1949; and (2) ‘unregistered religious marriages’ where the wedding does not comply with the Marriage Act’s requirement that for religious weddings (other than Church of England, Church in Wales, Quaker and Jewish), the wedding must take place in a registered place of public worship.
In both situations, unless and until the couple also undergo a civil marriage ceremony then they are not married in the eyes of the law and, therefore, cannot seek legal redress in the event of relationship breakdown.
The book discusses in detail two proposed reforms: (1) reform of the law on how people get married – as currently being explored by the Law Commission – to move to an ‘officiant’ based system which (a) removes the rule that religious weddings must take place in a registered place of public worship and (b) recognises weddings conducted by belief organisations and independent celebrants; and (2) an opt-out system of cohabitation rights on separation similar to that previously proposed by the Law Commission and the law that currently applies in Scotland (and is currently subject to a review by the Scottish Law Commission).
The important point, and main message of my book, is that both of these reforms are needed. We need a reformed law on getting married and we also need to introduce cohabitation rights on separation. Reform of the law on getting married can resolve the issue of non-religious marriages but can only mitigate the problem of unregistered religious marriages. Reform of the law on cohabitation, on the other hand, would provide some redress for those in non-religious or unregistered religious marriages but would not recognise their relationships as marriages.
However, the book also discusses other legal changes that will help mitigate the unregistered marriages problem, which is particularly pronounced in the scenario when the choice not to have a legally binding marriage was not witting or voluntary on the part of both of the parties.
One such possibility is reform of the law on validity.
Akhter v Khan
Readers of this blog will remember the case of Akhter v Khan. The facts related to a typical unregistered religious marriage. When the relationship broke down, Akhter issued a petition for divorce from Khan. At first instance ( EWFC 54), Williams J employed a creative approach to suggest that the marriage had been void. The importance of this distinction is as follows: parties to a void marriage enjoy the same benefits as a married couple until the marriage is annulled, and once a marriage is annulled they are then able to go to the State courts for assistance dividing their assets. By contrast, if there had been a ‘non-marriage’, then this would have meant that they would have had no recourse to State law on relationship breakdown.
The Court of Appeal (HM Attorney General v Akhter  EWCA Civ 122), however, rejected this flexible and creative reading of the law on validity. They insisted that there needed to be a ceremony under the Marriage Act which suffered from a defect in order for there to be a void marriage. It was held that the parties had had a ‘non-qualifying ceremony’ that was outside the scope of the Marriage Act and so were not entitled to any redress under State law. In removing William J’s solution to the unregistered religious marriage issue it is clear that the problem of unregistered religious marriages still remains.
Moreover, the Court of Appeal expressed “doubt whether it is possible or, indeed, sensible, to seek to delineate when the cumulative effect of the failure to comply with the required formalities will result in a non-qualifying ceremony and when it will result in a void marriage” . Any formulation would be unwise since the Court “would not want to encourage parties who want to marry to rely on such partially compliant ceremonies because the outcome will, inevitably, be uncertain”. However, I would argue that a lack of clarity as to the difference between void and non-qualifying ceremonies actually frustrates legal certainty.
The Law Commission proposals
The Law Commission in their Consultation Paper last September seem to agree with me. They argued that there is a need to provide greater clarity which should reduce “the scope for accidental non-compliance” with the Marriage Act (paras 10.106, 10.107). They proposed that an opposite-sex marriage would be valid provided that there is consent and “as long as the couple has given notice, and at least one of them believes that the person officiating at the ceremony is authorised to solemnize a legal marriage”. An opposite-sex marriage would be declared void where notice has not been given by both or either party or if the parties both know that officiant is not authorised (or there is no officiant). There would be a non-qualifying opposite-sex wedding and therefore no legal redress either (a) where one or both parties do not consent or (b) where the couple have not given notice and (i) they both know that the officiant is not authorised or (ii) that there is no officiant at all (Para 10.109 and 10.130). The paper states that “this would go a long way towards addressing the key problem of religious-only marriages, where some individuals do not realise what is required and are left without any remedy at the end of a lengthy relationship” (para 10.63).
It is striking that under this schema, while both parties need to give notice for a marriage to be valid, only one of them needs to believe that there is an authorised officiant (para 10.55). This would mean that the marriage is still valid if only one of the couple knows that the officiant is not authorised. The purpose is to protect the party who was unaware and by making the marriage valid, this rule would have the effect of frustrating the plan of the person who seeks to dupe the other into an unregistered marriage. It is difficult, however, to see why such a marriage should be valid rather than void or voidable. That would protect the unaware party whilst at the same time making it clear that a marriage where one party knows that the officiant is not authorised is not a valid marriage because, as we have seen, parties to a void marriage have the same access to divorce law in the case of relationship breakdown as those who are in a valid marriage.
I suggest that the Law Commission’s proposals can be summarised as stating that the status of the marriage depends on the answers to three questions: (1) Have both parties given notice? (2) Do both or one of the parties believe that the officiant is authorised? (3) Have both parties given consent?
Under the Law Commission’s schema, the absence of (1) or (2) will render the marriage void; the absence of (3) will make a marriage voidable or non-qualifying while the absence of (1) and (2) or the absence of all three requirements will render the ceremony non-qualifying.
These rules could be clarified further. In particular, contrary to the Law Commission’s proposals, it should not be a valid marriage where only one of the parties believes that there is an authorised officiant at the wedding. Sufficient protection would be given if such a marriage was declared void. This could mean that the law on the status of an opposite-sex marriage depends on the answers to three questions:
(1) Have both parties given notice?
(2) Did both parties believe that the officiant is authorised?
(3) Have both parties given consent?
The absence of (1) or (2) will render the marriage void; the absence of (3) will make a marriage voidable or non-qualifying; the absence of (1) and (2) or the absence of all three requirements will render the ceremony non-qualifying.
This would go some way to fulfil our principle that unregistered religious marriages are of concern where there has not been a free and informed choice to opt out of legal protection. However, these proposals would have made no direct difference to the outcome of Akhter v Khan, for instance. This points to the limited effect that changes to the law on validity can have (unless an overly generous approach is taken that effectively makes all purported marriages legally binding – and this would cause issues in terms of legal certainty as well as for those couples who enter into religious marriages with the intention that their union will not be legally binding).
The law on validity can only and should only be stretched so far. As the book argues, a preferable and more effective approach of providing relief for unregistered religious marriage is to reform the law on getting married and the law on cohabitation.
The video of the seminar/book launch is here.
Cite this article as: Russell Sandberg, Reform of law on validity and unregistered religious marriages, 12 July 2021, https://lawandreligionuk.com/2021/07/12/reform-of-law-on-validity-and-unregistered-religious-marriages/.