The presumption of marriage

What is the ‘presumption of marriage’?

There is a common law presumption of marriage (rebuttable by evidence) which arises in the two following circumstances:

1. Cohabitation and reputation
2. Ceremony followed by cohabitation

These presumptions are the starting point for the court when faced with a dispute as to whether a marriage ceremony complied with legal requirements, or whether any ceremony took place at all.

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Presumption from cohabitation and reputation

In the first, there is a presumption that a couple is legally married when they have cohabited for such a length of time and in such circumstances that they have acquired a reputation as being spouses, even if there is no positive evidence of a marriage ceremony having occurred. There must be ‘strong and weighty’ evidence to the contrary to rebut this presumption.

presumption from ceremony and cohabitation

In the second, if there is evidence of the two parties having had a marriage ceremony and then subsequently cohabiting, it will be presumed that they are validly married, unless there is decisive evidence to the contrary. For example, in Piers v Piers [1849] 2 H.L. Cas.331 it was presumed that a special licence which was necessary for the marriage to be valid had been granted, despite the bishop’s testimony that he didn’t believe that he had. Reportedly, it had been established that the bishop’s memory was unreliable, but the judgment indicates that the evidentiary threshold to rebut the threshold is significant.

Furthermore, this presumption of marriage may be relied upon even where it is unclear whether a couple satisfied the legal requirements of the jurisdiction where they married.

For example, in K v A (Marriage: Validity) [2014] EWHC 3850 it was unclear whether the Nikah ceremony performed between the two parties in Pakistan constituted a valid legal marriage under Pakistani law, due to the religious differences between the parties (the wife was Sunni Muslim and the husband was Ahmahdi). The registration of the couple’s Nikah marriage form was found to give rise to the presumption that the parties were married. Additionally, the court noted that under Pakistani law, there is a similarly strong presumption of marriage based on cohabitation and reputation.

This was more recently affirmed in Hayatleh v Modfy [2017] EWCA Civ 70, where it was held that the husband’s failure to produce ‘clear, positive or compelling evidence’ meant that the presumption of marriage between the parties was not rebutted, despite conflicting evidence as to whether the marriage had been validly registered in Syria.

Caselaw comparison of the presumption of marriage

To identify where the presumption of marriage will be rebutted, it may be helpful to compare two contrasting cases:

Chief Adjudication Officer v Bath

The case of Chief Adjudication Officer v Bath [1999] EWCA Civ 3008 concerned the validity of a marriage for the purpose of a widow’s pension. The couple had a Sikh wedding ceremony at a Gurdwara (Sikh temple) which was not a registered religious building. However, the couple had lived as husband and wife for almost 40 years, and the husband had paid income tax and social security contributions on the basis that he was a married man.

It was held that there was insufficient evidence to rebut the presumption of marriage, with particular weight given to the length of the parties’ cohabitation and their unawareness that the Gurdwara where they married was unregistered (nor were they aware that it needed to be).

In determining when the presumption of marriage will be rebutted, Evans LJ concluded the following:

“These authorities show that when the man and women have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form…When there is, as there is in England, a legal requirement that the marriage ceremony shall take a certain form, then the presumption operates to show that the proper form was observed, and it can only be displaced by what I would call positive, not merely ‘clear’, evidence…How positive, and how clear, must depend among other things upon the strength of the evidence which gives rise to the presumption - primarily, the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife.”

Al-Saedy v Musawi

In contrast, the more recent case of Al-Saedy v Musawi [2010] EWHC 3293 (Fam) was distinguished from Bath, with Bodey J finding that the cohabitation between the parties was insufficient to give rise to a presumption of marriage and that, in any event, the ‘husband’ had succeeded in rebutting the presumption of marriage.. The ‘wife’ claimed that they had married in Syria, which the ‘husband’ disputed. He claimed that they had a small gathering in his London flat but were not legally married.

To distinguish the case from Bath, Bodey J compared the circumstances of both parties and the specific facts of the cases. In Bath, the couple were young when they went through the marriage ceremony, aged only 16 and 19 years old, and had only recently moved to England and Wales. There was no suggestion that either of them was aware of any technical defect with their marriage, and both had assumed that they were legally married until the husband’s death and the wife’s application for a widow’s pension was subsequently refused.

Whereas in Musawi, Bodey J found on the balance of probabilities that no ceremony in Syria had taken place, and that neither party could have reasonably believed that the London ceremony satisfied the requirements of English law. As such, whilst the Sikh wedding in Bath was a ‘bona fida ceremony’ with one technical defect, the London ceremony in Musawi could not be considered such a ceremony.