Tackling Discrimination

This author's position on the discriminatory and unfair nature of non-marriage is a minority point of view. The majority take the stance that non-marriage must exist as there will be situations, created by marriage acts that can neither be valid or void, hence based on this, a third category must exist.

The case law shows non-marriage being applied to factual situations where a couple has lived together, for a significant period of time, bearing children and completing the commonly associated things that married couples do. The judiciary has enough previous experience for the ‘correct' determination of

such cases and has had the opportunity, several times now, to clarify the law in this area, but have not done so.^[225]

With so much turning on whether a marriage is void or non-existent, and with it being made clear the current law is discriminatory towards British Muslims and possibly other minority ethnic groups, reform of the Marriage Act 1949 is required so as to provide a clear and comprehensive set of rules that result in certain and predictable outcomes.

Case law in this area places a great deal of emphasis on the form of cer­emony, the place it is celebrated and who conducts the ceremony. To recap, this approach is unsatisfactory as the court is led to make a ‘value judgment^^[226] as to what is an English ceremony of marriage. In the case of British Muslims, the chances of an Islamic marriage closely resembling an ‘English ceremony of marriage' is unlikely, for the external appearance of the two are unlikely to be matched. In the two cases discussed above, the decisive issue was the lack of registration. As has been shown throughout this chapter, the current law of marriage in England and Wales requires non-Anglican Christian groups to take additional steps, beside their religious ceremony to be “really married”, and it is this that seems to be at the root cause of unregistered Muslim marriages. Compounded with the relatively recent creation on non-marriage means that non-compliant minority ethnic marriage ceremonies are more likely to be deemed non-marriages than their mainstream counterparts and as such this is discriminatory. Furthermore there is also a gender imbalance given that more often than not, as demonstrated by the case law, the losing party is the fe­male partner. Marriage breakdown, across the society adversely affects women over men.3^[227]

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