Vardags Family Law Essay competition 2023/24 | Ella Shaw

Ella Shaw - University of Manchester

‘Many of the problems with current weddings law can be attributed to its antiquity and complexity. Many of the current rules were devised to reflect a way of life that bears little resemblance to life today. It does not meet the needs of the diverse society which makes up England and Wales today. The law has been developed incrementally over time… to cater for weddings by different groups and in different locations. The result is a law that is inconsistent and complicated, inefficient, unfair and needlessly restrictive.’

Law Commission, Celebrating Marriage: A New Weddings Law: Summary (2022), p.2

Discuss with reference to AG v Akhter and Khan [2020] EWCA Civ 122.

Introduction

The current law concerning marriage is unnecessarily complex, rigid in application and highly outdated. The Marriage Act (MA) 1949 was established to serve a less diverse and highly religious society, contrary to the structure of contemporary society.

This essay will argue that the formalities of marriage are archaic, complex and prone to injustice.

It will first outline the formalities for a valid marriage, critically analysing the problems brought about by the concept of non-qualifying ceremonies (NQCs). It will then consider the judgement of AG v Akhter and Khan [2020], highlighting the problems with religious marriages that fall into the category of NQCs, and suggesting areas for reform.

The concluding argument shall recognise that the Law Commission’s proposals for reform (2022) are favourable and will better align with the structure and diversity of society.

Formalities under the Marriage Act 1949

The state has a clear interest in the regulation of marriage, understood by the Law Commission 2022 to have a “critical legal importance”. However, following an interpretation of the formalities for a valid marriage, under the MA 1949, it is apparent that the state has gone too far in its regulation. The MA 1949, supplies inadequate provisions for the multiculturalism that is contemporary society. Complexity in this area arises as different formalities are applicable to civil and religious ceremonies, rendering the marriage framework difficult to navigate.

The MA 1949 prescribes two routes for entry into a valid marriage - a civil and a religious route. Specifically, s11 and s49 list formalities, including a marriage licence, publishing banns (notice of intent to marry), notifying the registrar and conducting a ceremony within a registered building. Failure to comply with these formalities will result within a void marriage.

Following a broader interpretation of s11 MA 1949, the court should consider factors such as whether the parties (and registrar/religious figure) intended and believed the marriage to be legally binding, and whether the marriage was both public and witnessed. Non-compliance with these additional factors will place a marriage outside the scope of the act, rendering it an NQC.

Upon reflection of the multitude of requirements for entering a valid marriage, the law in this area is particularly complex and likely to be misinterpreted by those wishing to establish a valid marriage.

Problems with non-qualifying ceremonies

The category of NQCs is considerably broad. Courts have struggled to adequately define which ceremonies will fail to meet the requirements and thus cease to exist as a legal marriage.

NQCs are problematic, given that they are simple to create. A ceremony that does not take place in a registered building, as listed under the Places of Worship Registration Act 1855, for example, will not be a valid marriage. In this position, the parties to the marriage are required to undertake an additional civil marriage to be legally recognised.

Here, the law does not take account of religious requirements for marriage. Islamic ceremonies, for example, do not require notice nor to occur within a registered building. Islamic marriages that strictly follow the religious criteria, therefore, fall outside the scope of the MA 1949 and will be considered an NQC. It is evident that the principle of NQC’s is too broad and the components of the MA 1949, are restrictive.

Hyde v Hyde (1866), displays early English law conforming to religious formalities prescribed by ecclesiastical courts. The refusal to provide relief for non-Christian marriages displays that the framework is deeply rooted in historical perceptions of religion, unable to serve a diverse, modern society.

AG v Akhter and Khan [2020]

The Court of Appeal (CoA) within Khan confirmed that unregistered religious marriages fall outside the scope of the MA 1949 and are to be termed “non-qualifying ceremonies”.

This judgement is particularly controversial, given that the parties’ Islamic ceremony was conducted by an Imam and contained witnesses - satisfying most of the hallmarks prescribed by s11. However, the ceremony was conducted within a restaurant - not a registered building, and thus did not satisfy the MA 1949 formalities. An additional civil marriage did not take place. The CoA considered the classification of marriage to be procedural and hence not discriminatory.

Whilst this is in line with the law, it is unjust, given the parties’ attempt to legally marry and their fulfilment of the Islamic requirements for marriage. Merely observing the MA 1949, however, is not an adequate explanation for the stringent criteria in this area. Here, the law fails to take account of the financial burden of the additional civil ceremony Islamic couples must complete.

NQCs, in this sense, are discriminatory, in view of the removal of financial benefits (akin to that received by cohabitants, namely the division of assets, under the Matrimonial Causes Act 1973. Pratt (2018) places additional emphasis on the marital relationship held between the parties, who lived together whilst caring for four children and regarding themselves as husband and wife. Despite possessing knowledge of the absence of civil registration, the couple did not civilly marry and hence were not legally recognised.

The contradiction between marriage and Sharia law continues to generate problems for Muslim couples. Namely, the validity of Mrs Akhter and Mr Khan’s marriage within Islamic states such as the United Arab Emirates, but not within England and Wales, leads to uncertainty for Muslim couples. It seems disproportionate for the MA 1949 to accommodate the requirements of Christian ceremonies, though stipulates additional requirements (and expenses) for others.

Such conflicting legislation has led Mrs Justice Roberts (2014), to observe the issue of unregistered, religious marriages. Contending that “If a marriage is good by the laws of the country where it is effected, it is good all over the world”, Justice Roberts stresses the need for the law to adopt a consistent approach to religious ceremonies, which the Law Commission and academic scholars have since developed. Therefore, marriage formalities under the MA 1949 do not adequately serve religious ceremonies beyond the remit of Christianity, likely a reflection of the 74-year-old law. It seems impractical for an archaic law, encompassing few accepted ceremonies, to serve the diversity of contemporary society.

Reform proposals

The judgement of Khan highlights the pressing demand for an extensive reform, to avoid duplicating the detrimental impacts of NQCs in future cases. The requirement for reform is further stressed by Hopkins (2020), who maintains that reform should “reflect the wishes and needs of today’s society”. A modest reform of marriage law could limit the finding of NQCs to instances of manifest transgression from the MA 1949. Thus, the threshold for NQCs will increase, located only where there is knowing and wilful disregard for marriage formalities. Whilst a moderate shift in the law could reduce the frequency of marriages falling outside the scope of the MA 1949, parties would still be required to provide notice of intent to marry and hold their ceremony within a registered building. Upon reflection of the issues outlined in Khan, a modest reform would do little to shift the CoA’s judgement, since Islamic marriage does not require notice nor ceremony within a registered building. A modest reform, therefore, would continue to discriminate against religious marriages, and hence would not remedy the issue at hand.

As part of their report “Celebrating Marriage” (2022), the Law Commission proposed to reform the MA 1949, to provide couples with an increased level of autonomy. Paragraph 1.9 of the report recommends the removal of “unnecessary restrictions and costs”, permitting discretion for couples to legally hold ceremonies outdoors, in private homes and other, unregistered locations. Moreover, the Law Commission proposes that religious ceremonies should be recognised as legal ceremonies, eliminating the need for couples to conduct more than one ceremony.

Albeit that no governmental action has followed in response to the Law Commission’s proposals, their wedding project is currently ongoing. Intending to construct a framework that streamlines the marriage process whilst reducing the number of ceremonies falling outside the scope of the MA 1949. The Law Commission’s proposal to remove requirements that are indirectly discriminatory towards religious groups would better accommodate a diverse society with a multitude of religions. The success of a reform akin to that proposed by the Law Commission would pose beneficial in practice, reversing controversial decisions such as those upheld within Khan - legally recognising a ceremony conducted within a restaurant.

Concluding thoughts

To conclude, the MA 1949 encompasses an archaic and unrepresentative framework, which outwardly defies the needs of contemporary society. The needlessly restrictive requirements for a valid marriage are unrealistic, given the drastic change to both the structure and desires of society since the 1940s. The urgent need for reform in this area is exacerbated by cases such as Khan, which outline the discriminatory nature of the marriage formalities for those wishing to conduct non-christian, religious ceremonies.The Law Commission’s proposals for reform (2022) would present a favourable addition to the law - increasing autonomy for couples, whilst simultaneously reducing the austerity of the law.

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