The evolving concept of ‘non-marriage’ [2013] CFLQ 314

Keywords: Marriage - non-marriage - void marriages - religious ceremonies - formalities - intention

This article tackles the difficult question of what the consequences of failing to comply with the formalities required for the celebration of marriage will be in different circumstances. Whether the marriage will be valid, void or simply non-existent depends both on the degree of compliance with the law and whether any non-compliance was deliberate. While the concept of non-marriage is not to be found within legislation, the Marriage Act 1949 does provide the framework for determining what the minimum degree of compliance to create a valid or void marriage must be and, by inference, when it is necessary to categorise a ceremony as resulting in a non-marriage. Given the need for certainty in this area, it is suggested that the intentions of the parties - whether the positive intention to be married despite having failed to comply with any of the requisite formalities or the negative intention not to be married despite having gone through a formal ceremony of marriage - should not be relevant to the determination of this point.

The full version of this article appears in issue 3 of 2013 of Child and Family Law Quarterly.