The Law of Marriage - BriefHistory
Whilst this chapter does not purport to give a comprehensive historical narrative of the development of English marriage law, a brief overview does serve as a good starting point.
The first statutory provision governing the law of marriage was the Act for the Better Preventing of Clandestine Marriages 1753, which sought to provide when and how a marriage will be deemed valid or void by setting out the requirements for marriage. Before its enactment, there was a trade in irregular marriages known as Fleet marriages, as they were performed in and around the Fleet Prison in London with little regulation. Such clandestine marriages were considered problematic for the personal interests of the elite as they endangered their eligible young men, who would otherwise end up with inappropriate spouses.[189] There have been incremental changes to the statutory provisions but these have been carried out on a piecemeal basis and thus the current Marriage Act 1949, as a whole, still carries its eighteenth century legacy. This legacy is embodied in the double requirement that the marriage ceremony be conducted (a) in particular registered buildings and(b) by an authorised person. Both requirements remain vitally important and it is clear to see they stem from a Christian template of marriage; marriages taking place in a chapel and being conducted by a priest.
There are three routes into marriage. One leads via a religious Anglican ceremony and the required preliminaries, of which there are three: either the calling of banns on three successive Sundays, obtaining a common licence or obtaining a special licence. The second option is a civil marriage, which can be held either in a traditional register office, or on approved premises[190] preceded by the civil formality of giving noticing. The third option is a combined procedure, viz.
compliance with civil preliminaries, which are giving notice by each party in the registration district where he or she has been resident for at least seven days[191] and the production of a considerable amount of documentary evidence followed by a religious marriage at an authorised place of worship that is officially registered for that purpose, within 12-months.There are exceptions for Jewish and Quaker marriages, there are no formal legal restrictions on the place of marriage, so legally binding marriage ceremonies can take place anywhere, including private homes.
Other religious groups are restricted to conducting marriage ceremonies in places of religious worship,[192] which must also be registered for the solemnisation of marriages. In addition to this double restriction to place, the presence of an authorised person is required to record the marriage. You can see there are several routes into legal marriage in England and Wales with different options based upon whether a religious or civil ceremony is chosen and furthermore, different religions are treated quite differently, with the differences being measured against a Christian guide of how marriage can be entered into.
The regulation of marriage is important, the state should play a role in such regulation, deciding when to enforce and when to deny marital obligations, however what should happen if and when marriages are entered into, without completing all the required steps?
The law has not been specified to define this very question, as obvious as it may seem, especially in the present day. There seems to be very little guidance in place to provide the threshold requirements of a valid marriage. What exactly makes a marriage, in the eyes of the law, void? Furthermore, a void marriage, contrary to the dictionary definition of the word, still enables one party to apply for a decree under section 11 of the Matrimonial Causes Act 1973. Furthermore financial remedies under sections 23 and 24 of the same act remain available in void marriage situations.
In short, there is no real difference between a void and valid marriage as the same financial remedies are open to both categories.The current Act[193] fails to have taken into account the changes in society, the plural and diverse nature based on migration. It is useful to note the 1949 Marriage Act is a consolidating Act; it has been amended many times on a piecemeal basis. The exceptions made for particular religious groups seem to add complication, different rules for different groups.
Although the freedom to have a religious marriage that is legally recognised is longstanding and applies across religions in England and Wales, there is a puzzling disconnection between, the applicable law and social reality. The law in England and Wales provides for buildings to be certified as places of worship. Such buildings may then additionally be registered for the solemnisation of marriage. As such, the law makes provision for religious celebrants to solemnise legally recognised marriages in these buildings. Couples can and do celebrate a religious marriage in their mosque, temple or other place of worship, and it will be legally recognised if the requirements of the law are met. If religious celebrants or individual couples do not wish to take advantage of this provision, a couple have the option of a separate civil ceremony of marriage in order to have a legally valid marriage.
However based on customary practices of British Muslims, it is apparent that for many, a religious building like a mosque is not the natural setting for marriages to be conducted. This can be seen from the relatively (relative the British Muslim population as a whole) low numbers of registration of religious buildings to obtain the relevant status to conduct marriages. As of January 2018 there were 395[194] Islamic religious buildings registered for the solemnisation of marriage but this is an increase from 263[195] reported three years earlier.
Therefore it is often necessary for them to ‘marry twice', once in accordance with the civil law and then again via their faith. But what happens if they fail to do so, completing the legal stage, that is: if they marry only via the faith? How does the current law of England and Wales treat marriages that have failed to meet the required civil formalities, either regarding the preliminaries to civil marriage or the marriage ceremony itself, or both?
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