Introduction

Marriage is an important milestone in anyone's life. British South Asian communities in particular continue to hold marriage as an almost mandatory requirement, despite the increasing trend of cohabitation in wider British society. Cohabitation for the vast majority of self-classifying observant Muslims is neither permitted nor accepted under any circumstances, at least in a public and open form. This is chiefly because Islam prohibits adultery and restricts sexual relationships to within the framework of marriage. In order for a British Muslim couple to live together, they must marry in a form that is accepted by their community. It is important to state that this requirement also comes from the individuals themselves as marriage provides them the opportunity to remember and reaffirm their commitment to traditions and beliefs. Legal difficulties arise in those few cases where the marriage entered into does not comply with the law. Sometimes, but not always, this is a wilful failure, usually on behalf of one party.

Background

Marriage law was first put on the statute books in 1753 (Clandestine Marriages Act) and has sought to provide when and how a marriage will be deemed valid or void. The question of proving whether someone is married or not has been around for a long time but with better record keeping, this issue had mostly disappeared. However, over the past two decades or so, the question has arisen frequently for British Muslim couples, typically but not exclusively when the wife applies for divorce and financial orders. At this point the husband will often defend the petition on the basis that there was no valid legal marriage under the law of England and Wales and that the ceremony they underwent was merely religious in nature.

A failure to comply with the formalities required by English law may result in a marriage being classified as valid, void or a non-qualifying ceremony. The differences between the classifications are important for any party seeking financial relief. Essentially the first two will result in claims for financial relief but a finding of a non-qualifying ceremony will prevent any such application.