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MARRIAGE: Hudson v Leigh [2009] EWHC 1306 (Fam)

Date:5 JUN 2009

(Family Division; Bodey J; 5 June 2009)

The couple had undergone a religious ceremony in South Africa, with the intention that this would be followed by a legally binding civil ceremony in England. The couple did not sign the marriage register after the South African service, and certain parts of the marriage ceremony were omitted, in recognition of the fact that this service was not intended by either of them to be a legally binding ceremony. The civil ceremony, however, never took place, because the relationship broke down shortly after the religious service took place. The man petitioned for a declaration that a ceremony in South Africa had not effected a marriage between himself and the woman. The woman asserted that either there had been a valid marriage, in which case she sought a divorce, or there had been a marriage void for failure to comply with formal requirements of South African law, in which case she sought a decree of nullity. If there had been a marriage, even a void marriage, the woman was entitled to financial relief; if there had not, the woman was not entitled to financial relief.

If the South African ceremony were any sort of marriage at all, it would be a void marriage, for failure to comply with the relevant formalities. In fact, while having the trappings of a marriage, this had not been a marriage. The positive intention of the parties, and particularly of the celebrant, that the ceremony would not create the status of marriage took this case outside the intended scope of Matrimonial Causes Act 1973, s 12, concerning lack of consent. It did not matter that some of the guests had believed they were witnessing a legal marriage. It would be unrealistic and illogical to conclude that there was no such concept as a ceremony or event that, whilst having marriage-like characteristics, failed in law to effect a marriage. It was not either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event with marital characteristics should be held not to be a marriage. Questionable ceremonies should be addressed on a case by case basis, taking account of various factors and features, including: whether the ceremony or event purported to be a lawful marriage; whether it bore all or enough of the hallmarks of marriage; whether the three key participants, most especially the official involved, believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and the reasonable perceptions, understandings and beliefs of those in attendance. In most, if not all, reasonably foreseeable situations, a review of these considerations should enable a decision to be satisfactorily reached. Although a declaration that no marriage subsisted on a certain date could never be made (because of s 58(5), outlawing any declaration that a marriage was void at inception), a declaration that the ceremony in question had not effected a marriage at all would be in the public interest, creating certainty and beneficial for both parties. Declaring that there never was a marriage was distinct from declaring that a marriage had been void at its inception; in the latter case the correct course was nullity.