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/ 15 Jun 2016

Am I Married?

You may think that the question as to whether or not you are married is one with a straightforward and obvious answer. You’ve had the ceremony, you’ve been on the honeymoon and you’ve got the photos to prove it. For the vast majority of people, the answer is indeed obvious. However, there is a worrying trend within some communities to hold only a religious ceremony, forgoing the legal requirements enabling it to be a marriage recognised in the eyes of the law. This article addresses what is required in order to obtain a legal marriage and the consequences of your marital status if the couple separates.

As a couple looking to legally marry, there are a couple of options as to what form the ceremony can take, however the Marriage Act 1949 provides that certain formalities must be complied with. These include but are not limited to;
• Notice of the marriage shall be given to the superintendent registrar
• Notice of the marriage must be accompanied by a declaration in writing that there is no impediment to the marriage
• The marriage must take place at a building registered for the solemnisation of marriages
• If the marriage did not take place before a registrar, then an authorised person must be present at the solemnisation and before at least two witnesses
• During the ceremony the parties must declare that they know of no lawful impediment why they cannot marry

It is possible to have a civil ceremony which may take place at a Registry Office or other approved premises, or to have a religious ceremony which complies with the legal marriage formalities, or to have a religious ceremony which does not comply, together with a civil service. The danger comes when a non-compliant religious ceremony happens in isolation. Whether this happens as a result of lack of knowledge, following traditional practice in the community, or an express decision not to comply, the end result is the same; for all legal purposes the couple is unmarried.

Financial Remedies upon Separation
There can be several ways in which one’s marital status impacts on their financial affairs throughout their life and indeed upon their death. What people sometimes fail to consider are the financial implications if the couple separate.

If the couple is legally married, then the full spectrum of financial remedies are open to the couple upon divorce under the Matrimonial Causes Act 1973. The whole range of both parties’ assets, income and earning capacity will be taken into consideration in reaching a fair financial settlement. The settlement can include orders to sell a property, transfer property, make lump sum payments, share pensions and provide spousal maintenance, amongst others.
In contrast, an unmarried couple have only a very limited range of remedies available. If there is a property in which both parties made some form of contribution to its purchase with an intention to share the beneficial interests then it may be an application can be made to the court under the Trusts of Land and Appointment of Trustees Act 1996, to declare each person’s share. No consideration of the total wealth of each person is taken into account, however significant the disparity.

If there is a child of the family, then it may also be possible to make a claim under Schedule 1 of the Children Act 1989, for financial provision for a child. The respective financial resources of both parties are taken into account in this context, but the financial order would be for the benefit of the child only (such as a property held on trust for the benefit of the child reverting to the settlor once the child is 18 or 21) and are therefore very limited.

Challenging your Marital Status
Given the above, it is therefore very important for the less financially dominant party, especially if they are likely to be the primary child carer, to
(i) ensure that the marriage will be legally recognised at the time of marrying and
(ii) seek legal advice having entered into a religious marriage, as to the marriage status in law.

It is possible to apply to the court to seek a declaration under section 55(a) of the Family Law Act 1986 that the marriage was a valid marriage at its inception. However, there are public policy reasons as to why the courts are reluctant to do this; to freely make declarations regardless of the type of ceremony that took place would be to dispense with the formality requirements altogether. The case of MA v JA & the Attorney General [2012] EWHC 2219 (Fam) provided guidance on the issue and it was held that as the marriage ceremony was “of the kind” contemplated by the Marriage Act 1949 and the requirements set out above, then it was a potentially valid marriage in that particular case. It would appear that the more formality requirements the ceremony complies with, the higher chance of successfully declaring the marriage valid, although it still remains a high bar to meet.

Further information
If you are unsure as to whether you may have a case to challenge your marital status, or you are separating from your partner, whether married or unmarried and need advice on the financial remedies available, please contact us to discuss and our experienced family solicitors would be happy to assist.

Susanne Seaton
Trainee Solicitor

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