A-M v A-M (divorce: jurisdiction: validity of marriage): FD 2001

The parties had undergone a wedding ceremony under Islamic law, but not one which would constitute a marriage under UK law. H had been actively seeking to regularise the position as a matter of English law and had been advised that the parties needed to divorce and re-marry abroad to create a marriage which would be recognised as valid in England. had signed a power of attorney which enabled her to be divorced and was accustomed to signing documents at the husband’s behest without appreciating what those documents were. The evidence established if the wife signed a power of attorney, the husband could marry her in an Islamic country without her knowledge and had been seeking to pursue a foreign marriage. The court considered whether a party might marry by proxy.
Held: H had not rebutted the presumption that he might have married the wife by proxy without her knowledge. The court marked the distinction between a non-existent marriage and a void one. 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. Unless a marriage purports to be of the kind contemplated by the Marriage Acts, it is not, I hold a marriage for the purposes of section 11 of the Matrimonial Causes Act 1973. No doubt it is possible to envisage cases where the question whether a particular ceremony or other event does or does not purport to be a marriage of the kind contemplated by the marriage act is a fine one.’
Hughes J identified that Bodey J had considered whether it was possible or sensible to seek to define or set out a test for a non-marriage. He decided that it was not.
‘ I am unconvinced that there is or can be any satisfactory definition and to cover this sort of situation for convenience described in shorthand as a non-marriage or a non-existent marriage . . in the result, it is not in my view, either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case-by-case basis taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.’
Hughes J
[2001] 2 FLR 6
England and Wales
Cited by:
CitedHudson v Leigh FD 5-Jun-2009
The claimant sought a decree of divorce. The ceremony had been a religious one in Cape Town. They had intended it to be followed by a ceremony in a register office in England, but this did not happen. The pastor in south Africa said that he had . .
CitedHer Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .

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Updated: 31 March 2021; Ref: scu.376129