This was the question considered by Mr Justice Bodey in the case of Hudson v Leigh  EWHC 1306 (Fam). Mr Leigh and Ms Hudson had a religious ceremony in South Africa in January 2004 at what was described in the Judgment as “a fabulous roof-top setting overlooking a sunlit sea”. Although rings were exchanged with the words “I give you this ring as a symbol of our marriage”, the parties had intended to have a formal civil marriage take place in London on their return. Unfortunately, soon after the South African ceremony and prior to a civil marriage taking place in England, the relationship collapsed.
Mr Leigh sought a declaration that the South African ceremony did not constitute a marriage, whilst Miss Hudson’s position was that the ceremony had been a valid marriage and she petitioned for divorce on the basis of unreasonable behaviour, or a decree of nullity in the alternative. Ms Hudson was hoping to apply for ancillary relief, which deals with the financial aspects of the divorce and, something that she would obviously not be able to apply for if the ceremony in South Africa did not to constitute a valid marriage.
Mr Leigh was an atheist Jew, whilst Miss Hudson was a devout Christian, and the religious ceremony in South Africa had been a Christian ceremony for Miss Hudson’s benefit, who had stated to the court that she would not have otherwise considered herself married. The ceremony was amended so that any references to the word “lawful” were omitted in order to prevent the creation of a marriage which could be registered, and no marriage register was ever signed in South Africa.
A pre-nuptial agreement was signed by the parties on the morning of the religious ceremony which stated clearly the intention of the marriage effectively having two distinct parts, one of the religious ceremony in South Africa and the other of the civil marriage in London about six weeks later.
In his Judgment, Mr Justice Bodey looked at what could be deemed a void or voidable marriage for the purposes of annulment by way of a decree of nullity under Sections 11 and 12 of the Matrimonial Causes Act 1973. He concluded that the South African ceremony could not be considered as being either, as it was never intended by the parties to be the actual marriage ceremony, but merely as a precursor the legal ceremony which would take place in London some time later.
Mr Justice Bodey reflected on whether it was necessary for there to be a third category in addition to ‘void’ and ‘voidable’ marriages. It would be referred to as either ‘non marriage’ or ‘non-existent marriage’, and such a category can be found in other jurisdictions such as Germany. Although a number of various formulations were considered, in his judgment he stated that it was
“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.”
He also set out a non-exhaustive test for determining whether or not a particular ceremony would constitute a marriage:
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.
The court therefore declared that the South African ceremony did not constitute a marriage between Mr Leigh and Miss Hudson.
However, all was not lost for Miss Hudson, as she had given birth to a child of the relationship and was the primary carer for the child, consequently, in his closing remarks, Mr Justice Bodey noted that Miss Hudson could still apply for an order for financial relief for the benefit of their daughter under Schedule 1 of the Children Act 1989.
So, the answer to the question, when is a marriage not a marriage may be simple, at least according to Mr Justice Bodey, in that ‘a wedding is not a legal marriage when parties, and more importantly the officiator, never considered it to be such, amongst other factors’!
Cases of this nature are astonishingly common and we often come across situations where there are doubts as to whether the parties are actually married. Indeed at the time of writing this article we have several cases of this nature ongoing. Although the guidance provided by Mr Justice Bodey may appear to be quite clear, this is still a very complex area of the law and it is vital that advice is obtained from an expert Family Law solicitor. If you have any doubts as to the validity of your marriage you can contact us on 020 8401 7352 to book an appointment with an expert solicitor, or alternatively email us at firstname.lastname@example.org.