More information on the formalities necessary for forming a valid marriage can be found in our previous article ‘Is my marriage valid?‘.
Marriages that do not meet the requirements of a valid marriage fall into one of the following categories:
- Voidable marriages,
- Void marriages,
- Non qualifying ceremonies.
We will consider each of these in turn. First, a note on terminology. The Divorce, Dissolution and Separation Act 2020 has introduced the new term ‘Nullity of Marriage Order’ to replace the previous ‘Decree of Nullity’. This article will be using the new language but the substantive law remains the same.
If a marriage is voidable, it remains valid unless and until one of the parties to the marriage successfully obtains a Nullity of Marriage Order. This is also referred to as having the marriage annulled.
A Nullity of Marriage Order is a declaration by a court that you are no longer married. There are a number of grounds on which a marriage may be voidable, as set out under Section 12 of the Matrimonial Causes Act 1973. An order on these grounds can only be applied for by one of the parties while both parties are alive. Once one or both parties have died, the marriage will be considered valid permanently. The grounds are as follows:
- One or both parties did not give valid consent to the marriage,
- Either party has a mental disorder which means they are ‘unfit’ for marriage,
- A party to the marriage was pregnant by a third party at the time of the marriage,
- One party had a venereal disease in a communicable form at the time of the marriage,
- The marriage has not been ‘consummated’ (the parties have not had sex following the marriage either through incapacity or wilful refusal); this basis is not applicable to a same-sex marriage,
- An interim gender recognition certificate under the Gender Recognition Act 2004 has been granted to either party following the marriage, or the respondent has an acquired gender under that Act at the time of the marriage.
A marriage is void if it has such a fundamental defect that it cannot be said to have ever come into existence at all. It was invalid from the start. Technically, such a marriage does not need to be annulled, it is void whether or not a Nullity of Marriage Order is obtained. Such an order in this case is therefore declaratory only i.e. it merely declares officially something that is already the case: that no marriage was ever created between the parties.
However, a Nullity of Marriage Order offers certainty about the non-validity of the marriage. Otherwise, the parties take the risk that the marriage was in fact valid, which would necessitate a divorce to bring it to an end. A Nullity of Marriage Order declaring a marriage void can be sought by either party or anyone with sufficient interest in obtaining the order, and it can be sought at any time. The defects that render a marriage void, as per Section 11 of Matrimonial Causes Act 1973, are as follows:
- One or both of the parties were under 16,
- One or both of the parties were already married or in a civil partnership at the time of the marriage (bigamy),
- The parties are closely related (this is known has being within prohibited degrees of relationship, and includes circumstances where one party is the parent, child or sibling of the other),
- The marriage ceremony did not comply with the required formalities
- In a polygamous marriage conducted outside the jurisdiction, either party was domiciled in England and Wales at the time of the marriage.
A ‘non-qualifying ceremony’, sometimes referred to as a ‘non-marriage’, is a ceremony that falls so far short of the required formalities for a valid marriage ceremony, that it cannot even be considered a ‘void’ marriage.
This may seem like a strange distinction- if a void marriage is one that never existed, then how is a non-marriage any different? But this difference has important consequences. A Nullity of Marriage Order declaring a marriage void allows the parties to that void or voidable marriage to apply to the court for financial remedies. This is where the court makes decisions as to how marital assets and income should be divided between the parties after the dissolution/annulment of their marriage. No Nullity of Marriage Order can be granted for a non-qualifying ceremony. This means that people who have taken part in a non-qualifying ceremony may have no recourse to the courts to distribute assets following breakdown of the relationship.
Non-marriage is a very broad category, and the courts have struggled to clearly define which ceremonies fall so far short of the required formalities that they cannot even be declared void. It may seem obvious that, say, actors performing a marriage scene on stage will not have created even a ‘void’ marriage. However, even ceremonies that look a lot more like a valid ceremony, and which the parties involved think of as valid, can still be a non-qualifying ceremony. For example, the courts have made clear that faith marriages, such as the Islamic Nikah, which do not comply with marriage formalities, will be considered non-qualifying ceremonies and will not entitle the parties to a Nullity of Marriage Order (see Akhter v Khan  EWCA Civ 122). Parties to faith marriages therefore need to ensure that they also undertake a valid civil ceremony if they are to have the protection of the financial remedies regime.
For more information on financial claims following a void or voidable marriage – watch this space.
How can Hanne & Co help?
If you are concerned that your marriage is not valid, it is important to know where you stand. Invalid marriages can have complex consequences for those who wish to stay married and for those who wish to separate, divorce, or nullify the union.
Please do not hesitate to contact a member of our leading London family & divorce team who would be happy to assist on 020 7228 0017.