Vardags Family Law Essay competition 2024/25 | Louie Wells

Louie Wells - University of Oxford

The law on divorce and nullity: conflicting views on the role of marriage

The law continues to view marriage as a status conferred by the state, and this is reflected by the law on nullity and divorce. This essay will argue that while the rules of nullity and divorce are centred around providing (more) autonomy for couples to regulate their relationship, this is within the model of marriage as a status and is not to be interpreted to support the idea that marriage is a subjective contract based on the parties’ intentions. Furthermore, it will be argued that the principles underlying the rules on nullity and divorce are disharmonious, and as such the law’s vision of marriage does not align with the societal view of marriage. Therefore, it will be argued that while marriage should remain a status, the laws on recognition of this status should better reflect societal attitudes, without completely caving to the idea that parties are completely free to determine for themselves their conditions of marriage.

‘No Fault Divorce’ - allowing parties a smoother way out of the status of marriage

The significance of the Divorce Dissolution and Separation Act 2020 is that in a (now possibly joint) application for divorce, the parties need not show one of the 5 facts to support the ground that the marriage has irrevocably broken down. This does not, contrary to the media frenzy of time, trivialise divorce in such a way that might support an analysis that marriage is a mere contract. A party cannot, for example, apply for divorce on the basis that they do not like their mother-in-law – there must be (subject to the debate of whether the declaration is true) – an irrevocable breakdown of the marriage. Therefore, it is submitted that the reform of the law on divorce does not change the institution of marriage but rather afford the parties more autonomy in declaring an end to their marriage. Crucially, the reframing of divorce allows the parties to exercise their autonomy in their relationship in a way that corresponds with society’s general perception of relationships. Namely, that you do not have to show one of the 5 facts to validly behave in a way inconsistent with the general obligations of marriage. Sadly, this is about as far as consistency goes.

capacity - a poor protection of autonomy

Perhaps counter intuitively, the law on whether a marriage is voidable due to incapacity (1) is most usefully understood when we contrast the application of the Mental Capacity Act 2015 to decisions to cohabit and to marry.

First, we should note that the very aim of the court of protection is to promote the autonomy of those that may have less capacity (LB v Tower Hamlets) and as such, to ensure that marriage and its life enriching benefits are available to those who have the capacity to consent to it (Sir James Munby, Sheffield v E). As such, the courts have made clear that only where someone’s inability to decide by understanding and weighing the relevant information is a result of an impairment or disturbance will the marriage be voidable (PC v City of York).

The problem that has arisen is that the court’s understanding of what information a person (P) has to understand to consent to marry is too narrow, does not reflect how most people perceive marriage, and as such, is not a protection of a person’s autonomy (and possibly their rights under the ECHR). For example, in PC v City of York, a decision to cohabit is one which is ‘person specific’ meaning that P need understand the implications of deciding to cohabit with a specific person. Contrastingly, in a decision to marry, they need only understand the act of marriage (this has been rationalised on the basis that marriage no longer includes duties to cohabit, to procreate, to be sexually intimate). This idea that the marriage contract is ‘a very simple one’ (Mostyn J, NB V MI) is fundamentally out of touch with society’s understanding of marriage, and perhaps most worryingly, with the consequences which a vulnerable person with reduced capacity might suffer when entering a marriage.

But what does this tell us about the law’s vision of marriage? Two points should be made:

One, on the contractual view, there seems not to be a need to understand some of the core obligations that many would regard as intrinsic to marriage. For example, the party need not understand the financial consequences of being married (NB v MI). In fact for many, the idea that the law protects you against financial loss is so deep rooted that the idea of a ‘common law marriage’ giving rise to marital rights is held by almost half of the public.(2) It is also worth noting that the increase of predatory marriages (to gain access to a vulnerable someone’s estate via marriage) is perhaps occurring in a legal ‘black hole’ where incapacity to consent struggles to reach. For such vulnerable people, the fact-specific consequences of marriage that should be understood to validly consent can be even more important, especially where the marriage may affect their estate and lead to isolation from family.

Two, marriage is viewed as far more than these obligations, and decisions are therefore made on far more than the core elements of a spousal contract. As well noted (even if in respect of capacity to consent to sexual relations) by Justice Hayden in LB Tower Hamlets v NB, emotion and instinct often prevail in decision making with respect to relationships. The relevance of these two submissions is that the law is maintaining a prescriptive method of ascertaining what information a party might need to be able to consider consenting to marriage, not one that understands that even if marriage is a status conferred by the state, the relevant aspects of that status are not ‘one size fits all’.

ceremonies - paternal prescription unfit for modern britain

Even if the law is ‘out of touch’ with respect to the issue of consent to marry, one might think that where capacity is not an issue the law on nullity shows a vision of marriage which reflects a society which enters marriage in different ways. Such a conclusion would however be flawed. Instead, the law on ‘non qualifying ceremonies’ (NQC) creates a vision of marriage which is overly paternal.

The issue of a marriage in fact being a NQC, and thus not giving rise to the possibility of a financial order, is perhaps most common in non-Christian religious marriages. In Akhtar, the couple did not later affirm their Islamic marriage in a legal ceremony, and as such, the wife lost her bargaining power in the relationship without the protections that marital status can grant. Simply, in the law’s eyes – their ceremony does not look ‘enough’ like a marriage to even be considered a void or voidable marriage. This is despite s58(5) of the Family Law Act 1986 which prevents courts declaring a marriage void from inception. Simply, the rules on NQCs show that the law’s vision for marriage does not currently extend to a suitable range of religious of ceremonies. The Law Commission has proposed uniformization to the formalities for marriage across religious ceremony providers, and while this would hopefully reduce the number of cases like Akhtar, it would not help parties in such a case where they did not intend to get married in their religious ceremony (as they planned to have a separate legal ceremony). In this way, it seems sensible to keep some level of formality to provide certainty to the parties – we do not want a situation where someone can say that their ceremony qualified in retrospect. Instead, we need fairer rules on cohabiting couples that aren’t married so that the (hopefully) small number of relationships that fall through the gaps, but do deserve the benefits of state regulation, can access rights and remedies.

As such, while the law’s vision for marriage should not go as far as to cave to the unique circumstances of every party, the current law on nullity with respect to non-qualifying ceremonies shows a vision which is unjustifiably detached from the way in which many people, particularly from non-Christian religions, choose to commit in marriage.

Conclusion

The rules on divorce and on nullity seem to tell us conflicting things about the law’s view on marriage – as a result of the different (and often, poor) ways in which the law attempts to afford autonomy to people to enter the regulated status of a spousal relationship. The Divorce Dissolution and Separation Act strikes a good balance between allowing spouses to determine for themselves the reasons their marriage is over, without eroding the idea that marriage is a status. Contrastingly, the law on recognising whether a party is able to be or is indeed in a marriage shows that the law’s vision of marriage remains excessively prescriptive and formal. Therefore, marriage needs to change to afford greater autonomy to those seeking marital status, and to those that need protection from it.

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(1) By operation of s12(1)(c) Martial Clauses Act 1973 - (‘unsoundness of mind’)

(2) House of Commons Women and Equalities Committee, ‘The rights of cohabiting partners’ (2022–23)