What Is a 'Non-Marriage' or 'Non-Qualifying Ceremony' in England & Wales?

What is a non-marriage?

A ‘non-marriage’ or ‘non-qualifying ceremony’ is a wedding ceremony which is so far removed from the formalities set out in the Marriage Act 1949 and Matrimonial Causes Act 1973 that it cannot be said to have created any form of legal marriage.

Non-marriages are different to a void marriage, as whilst void marriages are also treated as having never existed due to a fundamental defect, parties to such a marriage may have a declaration of nullity.

By contrast, those who have entered into a non-marriage, cannot obtain a declaration of nullity and therefore lack recourse to obtain financial remedy.

Many religious ceremonies (all those except for Anglican, Jewish, or Quaker weddings) will result in non-marriages, unless they meet the additional legal requirements, e.g. the ceremony is registered by an authorised person and is conducted in a registered building (see our summary of Akhter v Khan).

If you are considering or going through a divorce and are concerned that your marriage will be considered a ‘non-marriage’, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.

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when will a marriage be a non-marriage?

However, whilst the Marriage Act 1949 and Matrimonial Causes Act 1973 set out when a marriage will be void, they do not provide when a ceremony will not be within the scope of the legislation at all – i.e. when a ceremony will be a non-marriage. As such, this will be determined on a case-by-case basis.

The distinction between a non-marriage and a void marriage is complicated, as both are marriages which are deemed to be non-existent. However, the categorisation of a marriage as void or a non-marriage has significant implications, as a void marriage will enable a party to apply for financial remedies, whereas a non-marriage will not.

The concept of a non-marriage or non-qualifying ceremony is relatively new, compared to the original categories of valid, void or voidable marriages. In Gereis v Yagoub [1997] 1 FLR 854 it was accepted that there is an important distinction between a void marriage and ‘something which is no marriage at all’.

This idea was further expounded upon in A-M v A-M [2001] 2 FLR 6, where Hughes J referred to ‘alternative marriage rites consciously and deliberately conducted altogether outside the Marriage Acts and never intended or believed to create any recognisable marriage’. He held that unless a marriage ‘purports to be of the kind contemplated by the Marriage Acts’ it will not be a marriage for the purpose of s.11 of the MCA 1973.

The idea is that a void marriage bears at least some of the hallmarks of marriage, whilst a non-marriage is so far removed from a valid marriage that it cannot even be deemed a void marriage. This was summarised neatly by Coleridge J in Burns v Burns [2007] EWHC 2492:

“Certain marriage ceremonies are so deficient of the character of marriage that almost as a matter of public policy, they cannot attract the kind of relief ancillary to a nullity decree that is usual.”

To determine whether a marriage is a void marriage or a non-marriage, the court will consider the following key, but not exhaustive, factors set out by Bodey J in Hudson v Leigh [2009] EWHC 1306 (Fam):

• Did the ceremony set out or purport to be a lawful marriage?
• Did the ceremony bear any of the hallmarks of marriage?
• Did the purported spouses and officiant believe, intend and understand the ceremony to be creating a lawful marriage?
• What were the reasonable perceptions, understandings, and beliefs of those present?

 

caselaw examples of non-marriages:

El Gamal v Al Maktoum [2011] EWHC B27

In El Gamal v Al Maktoum, a mother sought a petition of nullity, claiming she had married the father of her child by way of an Islamic marriage ceremony. She stated that the ceremony had created a void marriage, as it had failed to satisfy the formal requirements to create a valid marriage. The father denied that such a ceremony had even taken place, and argued that even if it had, it would have resulted in a non-marriage.

Bodey J held that the ceremony had taken place, but that there had been a ‘wholesale failure to comply with the formal requirements of English law’ and as such, there was no void marriage but a non-marriage.

Dukali v Lamrani [2012] EWHC 1748 (Fam) 

In Dukali v Lamrani the issue was whether a marriage ceremony was legally valid and whether a ‘non-marriage’ under English and Welsh law could be classed as a “marriage” for the purpose of Part III of the Matrimonial and Family Proceedings Act 1984, which outlines the circumstances where a party may be entitled to seek financial remedy in England and Wales after divorcing abroad.

The couple had a Moroccan civil marriage ceremony at the Moroccan Consulate in London. The ceremony did not comply nor purport to comply with the formal marriage requirements under English and Welsh law. The ‘husband’ subsequently obtained a Moroccan divorce.

The Moroccan Consulate argued that the marriage was valid in England and Wales under the Vienna Convention, as the marriage had taken place in a consulate and such marriages “are valid and recognised by countries hosting the Moroccan diplomatic or consular representations”. However, it was established in Radwan v Radwan [1973] Fam 24 that for the purpose of marriage or divorce, the premises of a consulate is considered the territory of the receiving State, not the sending State. Therefore, the marriage was contracted in England and Wales and would have had to follow English and Welsh law to create a valid marriage.

The court held that the wife could not apply for financial relief under the 1984 Act as the marriage constituted a ‘non-marriage’ due to its “manifold non-compliance with every requirement of the Marriage Acts as to notification, use of a registered or approved venue, form, authorisation of the officiant and subsequent registration. It was not void because… it did not even purport to be a marriage under the provisions of the Marriage Acts”. The court further held that the word "marriage" in the Matrimonial and Family Proceedings Act 1984 s.12 could only mean a marriage which was recognised under English law as a valid marriage, or at least a void marriage.