Published: Wed, 07 Mar 2018
According to Lord Penzance in Hyde v Hyde (1866) LR 1 PD 130, concerning the validity of a Mormon marriage, marriage may be defined as “the voluntary union for life of one man and one woman to the exclusion of all others”. This is still true today in that marriage must be voluntary, heterosexual and monogamous, and although it is no longer necessarily for life, the law does not recognise any fixed-term contract as creating a valid marriage. Marriage is unlike any other contract, in that its terms are laid down by the state and not by the parties themselves, nor can the parties by themselves agree to its termination.
It is convenient to say a word about engagement, which in some societies is almost as solemn and carries almost as many responsibilities as marriage itself. This is not generally so in England, where an engagement is no more than an agreement between two parties that they will marry at some (often unspecified) future date. Such an agreement was formerly regarded as a contract between the parties, and breaking off an engagement could lead to an action for “breach of promise”, but s.1 of the Law Reform (Miscellaneous Provisions) Act 1970 put an end to such actions by declaring that an agreement to marry is not an enforceable contract.
The same Act clarifies certain aspects of property law in relation to engaged couples. Under s.3(1), a gift from one party to the other may be subject to an (express or implied) condition that it is to be returned if the marriage does not go ahead; if so, the condition applies no matter which party broke off the engagement. Under s.3(2), however, there is a rebuttable presumption that no such condition attaches to an engagement ring. Whether engagement gifts from third parties belong to one or both of the couple is a matter of the donor’s intention, though where the donor is much closer to one than to the other, that may be useful evidence.
Section 2 addresses the beneficial interests of engaged couples in property they may have bought or worked on together, allowing the courts to determine such interests as if the couple had been married. The scope of this section is quite limited, however: it covers only those cases where an interest arises under the ordinary law of trusts, and does not give the courts the wide discretion they have in matrimonial cases.
In order to contract a valid marriage, the parties must possess the legal capacity to marry and must comply with certain formalities: a failure in either respect renders the marriage void. Parties have the capacity to marry if and only if they are
- not within the prohibited degrees of relationship,
- over 16 years old,
- not already married, and
- respectively male and female.
The prohibited degrees were formerly of two kinds: degrees of consanguinity where the parties were related by blood, and degrees of affinity where they were related by marriage. Either kind of relationship was a bar to marriage under ecclesiastical law (from which much of the modern law of marriage is derived): since a man and his wife “became one flesh” through the sacrament of marriage, it followed that a sister-in-law was as closely related as a natural sister. Modern civil law has largely removed the ban on marriages within degrees of affinity, though there are some restrictions (below) where the former partner through whom the parties are related by marriage is still alive.
The degrees of consanguinity are meant to discourage incest, which is seen (with little reason) as giving rise to a significantly greater risk of genetically transmitted disease and (probably rightly) as tending to disturb normal family relationships conducive to the proper upbringing of children. The prohibited degrees are defined in s.1 and Sch.1 of the Marriage Act 1949, as amended by the Marriage (Prohibited Degrees of Relationship) Act 1986 and other legislation. A man may not marry his mother or adoptive mother, his daughter or adopted daughter, his grandmother, his granddaughter, his sister or half-sister, his aunt by blood, or his niece by blood; similarly, a woman may not marry her father or adoptive father, her son or adopted son, her grandfather, her grandson, her brother or half-brother, her uncle by blood, or her nephew by blood.
A man may not marry his stepdaughter, his stepmother, his step-grandmother or his step-granddaughter, nor a woman marry her stepson, her stepfather, her step-grandfather or her step-granddaughter, unless both parties are over 21 and the time of the marriage and the younger was not at any time before the age of 18 “a child of the family” in relation to the older.
A man may not marry his mother-in-law or his daughter-in-law, nor a woman marry her father-in-law or her son-in-law, unless their former partners are both dead.
Under ss.10-11 of the Sexual Offences Act 1956, it is an offence for a man to have sexual intercourse with a woman whom he knows to be his graddaughter, daughter, sister (including half-sister) or mother, or for a woman over sixteen to have consensual intercourse with a man whom she knows to be her grandfather, father, brother (including half-brother) or son. Note that knowledge of the relationship is necessary for the criminal offence, but that a marriage within the prohibited degrees (which go considerably wider) is void irrespective of either party’s knowledge.
Marriage Act 1949 s.2
A marriage solemnised between persons either of whom is under sixteenshall be void.
The section is clear and uncompromising: the marriage is void irrespective of either party’s knowledge of his or the other’s age. This can bear harshly on those born in undeveloped countries or in other circumstances such that they do not know their age with certainty. If it is shown (perhaps years later) that such a person was under sixteen at the time of his marriage, though mistakenly believing himself over that age, the marriage is void ab initio. (Before 1929 there was no minimum age, though the parties had to be capable of consummating the marriage: this ability was presumed at 14 for males and 12 for females, but could be proved by suitable evidence even below that age.)
If a person is over sixteen but under eighteen, and has not been married before, s.3(1) of the 1949 Act requires the consent to his marriage of each of his parents or other persons having parental responsibility for him. This requirement may be dispensed with by the superintendent registrar if the parent &c is unavailable or incapable of giving consent, or by order of the court, and the court has power to override even an outright refusal. A public objection by such a person when the banns are read nullifies the banns and under s.25(c), if either party is aware of it, makes void any subsequent marriage based on them.
Under s.28(1)(c), where a person is to be married under a registrar’s certificate, a solemn declaration must be made that any necessary consent has been obtained; making a false declaration is a criminal offence under s.3 of the Perjury Act 1911. However, where a civil marriage has been performed apparently in accordance with the standard procedure, s.48(1)(b) of the Marriage Act 1949 provides that no evidence may be given in any proceedings touching the validity of the marriage to prove that any necessary consent was not obtained.
Where at the time of the marriage either party was already lawfully married to someone else, whether or not they knew it, the marriage is void under s.11(b) of the Matrimonial Causes Act 1973. A married person who marries again also commits the offence of bigamy under s.57 of the Offences Against the Person Act 1861; he has a good defence if his former partner has been missing for seven years during which he has had no reason to believe her still alive, but this does not validate the second marriage. To overcome this problem, s.19 of the 1973 Act allows a person to apply to the court for a decree of dissolution of marriage based on the presumed death of the spouse, where there are reasonable grounds for such a presumption.
R v Allen (1872) LR 1 CCR 367, CCR
D was charged with bigamy, having married again while his former wifewas still alive. He claimed that since his second “marriage”was not legally valid, he had not in law committed the offence asdefined. He was convicted and his appeal was dismissed: Parliament couldnot have intended to create an offence that it was logically impossibleto commit, said the court, and the Act clearly referred to a person whogoes through a ceremony of marriage.
R v Tolson (1889) LR 23 QBD 168, CCR
D’s husband deserted her; when D made enquiries she was told that hehad taken a certain ship to America, which had gone down with all hands.Six years later, believing herself a widow, D married again, and whenher first husband reappeared alive and well she was charged with bigamy.Allowing her appeal, the Court said her honest and reasonable belief incircumstances making her act innocent was a good defence.
Talbot v Talbot (1967) 111 SJ 213, Ormrod J
A woman T, who dressed as a man and called herself John, went througha ceremony of marriage with W. W discovered next day that T was actuallyfemale, but continued to live with T for almost a year. Four yearslater, W sought and was granted a decree of nullity: the judge said thiswas plainly no marriage.
Harrogate BC v Simpson (1986) 2 FLR 91, CA
A lesbian D lived with another woman in a permanent relationship as”husband and wife” in a council house. When the tenant died,the Council sought to evict D, who claimed a secure tenancy under theHousing Act 1980 as “a member of the tenant’s family”. The Actdefined a person as being a member of the tenant’s family if they livedtogether as husband and wife, but the Court of Appeal dismissed D’sappeal. Watkins LJ said it would be surprising in the extreme if publicopinion were such that it would recognise a homosexual union as beingakin to a state of living as husband and wife.
Fitzpatrick v Sterling Housing Association (1999) unreported, HL
Reversing the Court of Appeal, the House of Lords (Lords Slynn,Nicholls and Clyde, Lords Hutton and Hobhouse dissenting) held that agay man was entitled to take over the tenancy formerly held by hislong-term male partner, now deceased, under the Housing Act 1988.Lord Slynn said the legislation could not be interpreted to allow P’sclaim on the basis that he had been living “as the husband orwife” of the deceased – if Parliament had intended such arelationship to include same-sex partners it would surely have said so -but P could claim as “a member of the family” living with thedeceased at the time of his death.
Some difficulties have arisen in relation to transsexuals: there are thought to be about 1500 male-to-female and about 300 female-to-male transsexuals in the United Kingdom, but so far as the law is concernedthey retain the legal sex into which they were born. A transexual can therefore lawfully marry a person of the sex he/she has now adopted, but not one of his/her birth sex.
Rees v United Kingdom (1986) 9 EHRR 56, ECHR
A female-to-male transsexual P, who had undergone surgery and changedhis name by deed poll, complained that the English law preventing himfrom marrying a woman was a breach of Articles 8 and 12 of the EuropeanConvention on Human Rights, guaranteeing respect for private life andthe right to marry. He also complained that his birth certificate stillshowed him to be female, and that he had been refused a correctedcertificate, even though all other official documents (including hispassport) showed him to be male. The Court rejected both claims: thebirth certificate was a historical document showing the child’s sex atbirth, and national governments were entitled to make reasonable lawsgoverning the exercise of the right to marry.
Cossey v United Kingdom (1990) 13 EHRR 622, Times 17/10/90, ECHR
A male-to-female transsexual P claimed that the Registrar’s refusal toissue a new birth certificate showing her to be female was aninfringement of her right to respect for her private life, and that theimpossibility under UK law of her marrying as a woman was a violation ofher right to marry. The Court, by majorities of 10-8 and 14-4respectively, affirmed the decision in Rees and dismissed both claims:there was not yet sufficient uniformity of practice among states toestablish a general rule.
B v France (1992) 16 EHRR 1, Times 31/3/92, ECHR
A male-to-female transsexual B complained of the authorities’ refusalto recognise her changed sex. The Court distinguished Rees and Cosseyabove, and found a violation of B’s right to respect for her privatelife. First, French law as it stood (unlike English law) allowedannotations to be added to a birth certificate, so there was no goodreason for refusing such an annotation in B’s case. Second, French lawprohibited a person from using on official and semi-official documentssuch as tax returns and cheques any name other than that on the birthcertificate, with the result that B had to explain repeatedly why shehad a male name. And third, B’s INSEE (social security) number clearlyidentified her as male, requiring further embarrassing explanations when(as often happened) it was quoted as an identity check on documents.
X Y & Z v United Kingdom (or Whittle v UK) (1997) 24 EHRR 143,ECHR
A female-to-male transsexual X complained that English law refused toregister him as father of the children born (by artificial insemination)to his long-term female cohabitant. The European Court of Human Rightsunanimously affirmed that “family life” in Art.8 extended toX’s situation: factors such as the length of and mutual commitment to arelationship should be taken into account, and on the facts there wereclear de facto family ties linking the applicant, his cohabitant and herchild. However, there was still no uniformity of practice in relation totranssexuality, and English law was within the wide margin ofappreciation to be allowed to member states.
All marriages must be conducted with a certain amount of formality, and all marriages must be registered. This not only emphasises to importance attached to the contract, but enables the parties and others to declare with reasonable certainty whether they are married and, if so, when they became married. This may be important, for example, in the distribution of an estate on intestacy.
A civil marriage is solemnised on the authority of a superintendent registrar’s certificate (with or without a licence) or a Registrar-General’s licence: the main difference between these is that by paying a higher fee the waiting period can be reduced. The requirements of these are set out in ss.26-36 of the Marriage Act 1949.
A superintendent registrar’s certificate is the most common. Each party gives notice to the registrar in the area in which he/she has resided for the past seven days, and formally declares that there is no known impediment to the marriage, that any necessary consents have been given, and that the residence conditions have been met. This notice is published in the register office, and if no objection is recorded within 21 days (15 days from January 2001, or less if there are “compelling reasons”), the registrar issues a certificate allowing the marriage to take place in a registered building or other approved premises any time in the next three months.
A superintendent registrar’s certificate with licence is more expensive but reduces the waiting period and requires only one of the parties to give notice. Either party gives notice to the registrar in the district where he/she has resided for the past fifteen days, and the certificate and licence issued after a delay of just one clear day. The requirements are otherwise the same as for the certificate alone. This procedure is abolished with effect from 1 January 2001.
The Registrar-General’s licence is obtained only in exceptional cases, as for example where one party is ill and unable to be moved: it can authorise a marriage in any place.
Small v Small (1923) 67 SJ 277, Duke P
An army deserter H lived under an assumed name to avoid recapture, andbefore his marriage he had the banns called in this name. When H soughta decree of divorce on the grounds of W’s adultery, the King’s Proctorintervened to argue that the marriage was a nullity from the start. Thejudge said the banns had not been validly published because of thefraudulent intent, so the marriage was void and the decree nisi shouldbe discharged.
According to Blackstone, writing in about 1765, the husband and wife were one person in law: the legal existence of the woman was suspended and incorporated into the personality of her husband. She could not make a contract except as her husband’s agent, and although she could commit torts her husband remained jointly liable. A husband could not make a legal gift to his wife, nor enter into a contract with her; however, he could leave property to her in his will, because that would not take effect until after the marriage was ended by his death. The husband was responsible for his wife’s debts, whether contracted during the marriage or before, and if she committed any crime in his presence it was presumed that she did so under his direction. As late as 1840, Coleridge J in Re Cochrane 8 Dow PC 630 said there could be no doubt that “the husband hath by law power and dominion over his wife and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner”.
The law has changed since then, largely due to the growing recognition that women (included married women) are individuals with minds and rights of their own. Husbands no longer have disciplinary rights over their woves, and husbands and wives are separate legal persons who can make contracts with one another, sue one another, commit crimes against one another, and so on.
R v Jackson  1 QB 671, CA
A wife W left her husband H for another man; H kidnapped W as she wasleaving church and took her home. Reversing the Divisional Court, theCourt of Appeal overruled Cochrane and granted habeas corpus, saying Hhad no right to detain W against her will. If a husband ever had thelegal right to beat his wife, said Lord Halsbury LC obiter, thatentitlement was now obsolete.
But the fact of marriage alters the partners’ legal status in various ways: they have a duty to support one another financially, for example, and share parental responsibility for their children. Married couples enjoy various tax benefits, particularly in relation to inheritance tax, and only a legal spouse (or the parents of an unmarried minor child) can claim bereavement damages under the Administration of Justice Act 1982. A spouse takes precedence over anyone else in the event of intestacy – a divorced spouse or cohabitant come nowhere in that reckoning – and a spouse has a better claim than others for provision to be made for his or her maintenance out of the estate, though since the Law Reform (Succession) Act 1995 a cohabitant of two years’ standing can apply for provision along with a spouse or child.
Rignell v Andrews  1 FLR 332, Ferris J
M and W lived together for eleven years and she took his surname. M’sclaim for a married man’s tax allowance was allowed by theCommissioners, but the judge allowed the Inspector’s appeal. The statuteclearly extended only to formal marriages recognised by the civil law:the so-called “common law wife” has no legal standing.
A husband and wife cannot be convicted of conspiracy with one another alone, and under s.80(3) of the Police and Criminal Evidence Act 1984, the lawful spouse of a defendant in a criminal case cannot be compelled to give evidence for the prosecution unless the charge involves a violent or sexual offence against the spouse or a child, though cohabitants and former spouses are compellable witnesses. The doctrine of coercion survives in a very restricted form, the presumption of coercion in criminal matters having been abolished (subject to contrary proof) by the Criminal Justice Act 1925.
R v Shortland (1995) Times 23/5/95, CA
A wife D was convicted of making a false statement to procure apassport. Allowing her appeal against conviction, Kennedy LJ said D’sdefence of coercion should have been put to the jury. This did notnecessarily mean physical force, or the threat of force: it would havebeen enough if D’s will had been overborne by that of her husband.
Married couples have an obligation of confidentiality towards one another, and either can be restrained by injunction from revealing to a third party anything learned from the other in the course of married life.
Brodie v Brodie  P 271, Horridge J
W petitioned for an order for restitution of her conjugal rights (anaction no longer available since 1970). In reply, H pled an agreementmade before the marriage (which had taken place only because W wasalready pregnant by H) that the parties would permanently live apart.The judge, granting W the order she sought, said such an agreement wascontrary to public policy and could not be a defence.
The English courts are generally happy to recognise the validity of marriages contracted abroad by those normally resident there, even though other countries’ rules governing (sometimes) eligibility and (almost always) formalities are different from those applicable in England.
Bibi v Chief Adjudication Officer (1997) Times 10/7/97, CA
P was the first wife of H, a British citizen normally domiciled in theUK. H and P married in Bangladesh in 1966, and in 1969 H married asecond wife W2, again in Bangladesh. Both P and W2 remained living inBangladesh until 1986, when P and her children joined H in the UK. In1988 H died, and P claimed a widowed mother’s allowance under s.25 ofthe Social Security Act 1975. Her claim was rejected, and the Court ofAppeal upheld the refusal. Provision had been made by regulation for thepayment of benefit to some survivors of potentially polygamous marriageswhich were in fact monogamous, said Ward LJ, but where the marriage wasactually polygamous none of the “wives” was in law a widowentitled to the benefit in question.
The law governing the nullity of supposed marriages is based on the canon law administered before 1873 by the ecclesiastical courts, but is now almost completely codified in the Matrimonial Causes Act 1973. Decrees of nullity are rare nowadays – in 1995 there were barely 500 decrees absolute, compared with more than 150 000 divorces – but the subject is still of some academic interest.
A marriage may be either void or voidable. If it is voidable, the marriage remains valid until it is formally annulled by an order of the court, and a decree of annulment can be sought only by one (or both) of the parties during the lifetime of both. A void marriage is void ab initio; a decree of nullity can be sought by any person with a legitimate interest and can be pronounced at any time, even after the parties have died. In theory a void marriage is void in itself, irrespective of any decree, but in practice a formal decree is normally sought first for the removal of any doubt and second because the court annulling a marriage has discretion to make certain orders (e.g. for financial support) similar to those available in the event of divorce.
Gereis v Yagoub  1 FLR 854, Judge Aglionby
M and W went through a purported marriage in a Coptic orthodox church.Neither the church nor the priest who conducted the ceremony werelicensed for marriages, and no prior notice was given to thesuperintendent registrar. The priest warned M and W that they would haveto have a civil wedding as well, but for some reason they did not dothis. When the relationship broke down a year later, W sought a decreeof nullity but M argued there had never been even a void marriage thatcould be annulled. Granting W’s application, the judge said the partieshad treated their relationship as a marriage – M had claimed a marriedman’s tax allowance, for example – and since it was clearly void thereshould be a decree of nullity. Obiter, no decree would be needed (and nooffence would have been committed by the celebrant) if the ceremony wasclearly no more than a “mock marriage”, as for instance in atheatrical production.
Under s.12 of the 1973 Act, a marriage may be voidable:
- if either party is unable to consummate the marriage, or
- if either party wilfully refuses to consummate the marriage, or
- if either party did not validly consent to the marriage,
or if at the time of the marriage
- either party suffered from mental illness, or
- either party suffered from venereal disease (which may or may notinclude AIDS), or
- the wife was pregnant by a man other than the husband.
Consummation of the marriage, according to Dr Lushington in D v A (1845) 163 ER 1039, requires “ordinary and complete” rather than “partial and imperfect” sexual intercourse, including erection and penetration but not necessarily leading to orgasm. It certainly need not result in conception, and the fact that the husband may be sterile or the woman barren is legally irrelevant.
Either party can seek an annulment on the grounds of incapacity. The incapacity may be physical or psychological, and may not prevent intercourse with anyone other than the spouse, but must be permanent and incurable. The fact that the parties may have had successful intercourse before the marriage is irrelevant if the incapacity existed at the time of the marriage; it is not clear how the law would view a case in which (say) the incapacity was the result of a road accident between the church and the honeymoon hotel.
Potter v Potter (1975) 5 Fam Law 161, CA
H and W married, and found W was physically unable to consummate themarriage. W underwent surgery and they tried again, but were preventedby W’s emotional state. H then declined to try further and W petitionedfor annulment on the grounds of H’s wilful refusal. The judge dismissedthe petition and W’s appeal also failed: H’s refusal was the result ofhis loss of sexual ardour rather than a deliberate decision.
Ford v Ford  Fam Law 232, Judge Goodman
H and W had a sexual relationship until H was sent to prison. Theymarried while he was in prison, but he refused to consummate themarriage at the time and later said he did not want to live with W evenafter he was released. W’s petition for a decree of nullity was allowed:H’s refusal to consummate the marriage in prison was not a “wilfulrefusal”, but his clear determination never to do so wassufficient.
Where the parties jointly regard some other act (usually a religious ceremony) as necessary before consummation, refusal to participate in this other act will be regarded as refusal to consummate.
A v J (Nullity)  1 FLR 110, Anthony Lincoln J
H and W were of Indian ancestry and took part in an arranged civilmarriage, which was to be followed by a religious ceremony some fourmonths later. Between the two ceremonies they spent only a few daystogether because of H’s work in the USA. Shortly before the religiousceremony (which it was accepted was a prerequisite to consummation), Wrefused to go ahead with it, giving as her reason H’s apparentlyuncaring and unloving attitude towards her. H apologised and said he hadsupposed a formal relationship would be appropriate until they were”properly married”, but W refused to accept this apology andmaintained her refusal to go through with the religious ceremony. H wasgranted a decree of nullity for W’s wilful refusal to consummate themarriage.
The formalities of marriage involve declarations of consent by both parties, and (even if the officiant were to go ahead) in the absence of such declarations the marriage is void. Apparent consent may not be real consent, however, if it is the result of insanity, duress (which does not necessarily have the same meaning as in criminal law or contract) or a mistake as to the identity of the other or the nature of the ceremony.
Durham v Durham (1885) 10 PD 80, Hannen P
The Earl of Durham sought a decree of nullity, and claimed his wifehad not had the mental capacity needed for marriage. The judge said thecontract of marriage is a very simple one, which does not require a highdegree of intelligence to comprehend. But a person who understands thelanguage of the ceremony may still be affected by delusions or otherinsanity so as to have no real appreciation of its significance. (On thefacts, P’s petition was dismissed: the judge decided R had hadsufficient capacity at the time of the marriage, though her conditionhad deteriorated later.)
A marriage is voidable at the instance of a party who has entered into it under duress. This does not necessarily have the same meaning as in criminal law, though the decisions do not make it entirely clear just how much pressure is required.
Scott v Sebright (1886) LR 12 PD 21, Butt J
A woman W sought a decree of nullity because of fraud and duress. Hhad tricked her into taking over his debts, had then refused to help herunless she married him, and once he had her in the register office(again by a trick) had threatened to shoot her if she did not go throughwith the ceremony. H and W separated immediately after the marriage,which was never consummated. The judge granted a decree of nullity: Whad not given the genuine consent the law required.
Lee v Lee (1928) 3 SW 2d 672, Supreme Court (Arkansas)
W was pregnant by M. Having established M’s identity, W’s father wentto M with his rifle and told him he would “have to give the baby aname”. M and W then married, and M subsequently sought to have themarriage declared void on grounds of duress. His petition succeeded eventhough W had been unaware of what her father had done; this was stillduress, said the judge, and if there had not been a wedding there wouldprobably have been a funeral.
Singh v Kaur  Fam Law 152, CA
A Sikh P sought annulment of his marriage on grounds of duress. Themarriage, when he was 21, had been arranged by his parents; P hadprotested strongly, but had been told that refusal would lead todisgrace for his family and that he would have to leave the family homeand give up his place in the family business. The Court of Appealaffirmed the judge’s refusal to grant a decree of nullity: they werebound by Singh v Singh, they said, and there had been no threats to P’slife, limb or liberty.
Hirani v Hirani (1982) 4 FLR 232, CA
A Hindu woman W, living with her parents, went through a marriagearranged by her parents, but the marriage was never consummated and sheleft her husband after six weeks. W sought a decree of nullity on thegrounds of her parents’ duress, but initially failed because there wasno evidence of any threat to her life, limb or liberty. The Court ofAppeal granted the decree: W’s parents had threatened to throw her outof the house if she refused to marry the man they had chosen, and thisthreat (coupled wit
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