Judicial Guidance - Hudson v Leigh

In the case of Hudson v Leigh^{[200] [201] [202] [203] the court provided some much needed judicial guidance on how and where to draw the dividing line between a void mar­riage and a non-marriage.}

A Christian minister celebrated the South African wedding and it followed the typical order of a wedding, complete with ceremony, reception, sit-down dinner, speeches and dancing?³ During the religious ceremony the Minister, as instructed by the couple, omitted the legal formalities from his service and there was no signing of the marriage register and he did not complete the ap­propriate registration that would be normally required to effect a legal mar­riage in South Africa.1⁴ However there was an exchange of rings followed by the words, “I give you this ring as a sign of our marriage”?⁵ On the morning of the religious marriage ceremony the parties signed a pre-nuptial agreement stipulating the intention of the marriage to effectively have two distinct parts, the South African religious ceremony followed by the London civil marriage approximately six weeks later. Before the date for the civil marriage in London was fixed however, the relationship broke down. The matter proceeded to court to ascertain the legal effect of the South African religious ceremony and whether or not the wife was entitled to claim financial relief, the usual finan­cial orders available to divorcing couples, via either a valid or void marriage or in the alternative by a decree of nullity (which allows an applicant to obtain the financial remedies to which s/he would have been entitled if the marriage had been valid in the first place).

The court was persuaded by the positive intention of all three key partici­pants, the wife, the husband and the minister in not wishing to have a legal marriage.¹⁶ The formal validity of the marriage was governed by South African law and it was held that if the ceremony was to have effected a marriage at all, it would result in a void marriage. This was due in part for failing to com­ply with all the formalities. The husband's expert called this ‘compound non- compliance'.1⁷ It was held, however, that the marriage ceremony in South Africa had not created the status of marriage at all between the parties and following this there was no application for financial relief arising from this non-marriage.

In reaching this decision, the court offered some limited guidance to the matter of such non-marriage but refused a general test, as the judge remained unconvinced there could be such a single formulation. The four factors^ of guidance were to ask the following questions in such matters:

(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 was careful to set down a broad disclaimer along with these four fac­tors. In particular, it was said “the factors listed should be taken account of but ^{[204] [205] [206] not exhaustively”[207] and the issues in the case should be taken in account on a case-by-case basis, merely as a framework to begin evaluation of the specific circumstances of a case. Such limitations (of the factors) can only mean that they should be considered as judicial guidance and not broad guidance or for that matter, clarification of the law regarding the concept of non-marriage.}

The four factors in determining whether a marriage ceremony is capable of giving the status of marriage on the parties reveal pressure points of the cer­emony and the actions of the parties. Nonetheless, judging whether the mar­riage can be deemed to have complied with enough or all of the requirements of marriage, as set down by English law can be problematic, especially when making such assessments of non-Anglican Christian forms of marriage, as the law predominately follows the Christian marriage tradition as a benchmark.

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