By Joanne Lawrence-Hall, Associate, Family Law Department, Kerman & Co LLP
According to Resolution (the solicitors’ family law association), over half the population are unaware that, on the breakdown of a relationship, co-habiting couples have virtually no protection or financial remedies available to them. The problem would appear to be that the majority of the population still believe in the existence of ‘Common Law Marriage’, a state in which, so it is believed, parties acquire rights in respect of property by living together for a period of time, generally thought to be two years. In reality, Common Law marriage has not existed in England and Wales since 1753 and the Courts have no power to award capital, property, a share of a pension or maintenance to a co-habitee. If real property is held in the name of only one party then, unless the other party can show that, at the time that property was conveyed, it was intended that he or she should have a beneficial interest therein (that is, a share in the proceeds of sale of the property), then the non-owning party will walk away from the relationship with nothing. This is irrespective of how long the relationship has endured, whether resources were pooled or the parties had children. Disputes between co-habiting couples in relation to property will usually be brought under the Trusts of Land and Appointment of Trustees Act 1996 and such proceedings can be long, difficult and costly. The best way to avoid the prospect of such a dispute is to make sure that financial affairs are regulated at the outset by means of a Co-habitation Agreement. To ensure that this is binding, the document should be drafted by an expert family lawyer and each party should take independent legal advice.
In respect of real property, disputes can be avoided if the parties’ intentions are made clear at the time that the property is purchased. Property can be held by more than one person, either as ‘Joint Tenants’ or ‘Tenants in Common’. The difference is crucial, thus it is vital that joint purchasers have these different interests and their consequences explained to them before the Transfer Deed is drawn up. Although the pro forma Transfer Deed, Form TR1, expressly invites joint purchasers to declare their beneficial interests in box 11, it is not necessary for this box to be completed for the transfer to be valid. Joint purchasers should be entirely clear what their intentions are as to how property is to be held and if they are in any doubt as to what should be done, it may be helpful to seek the assistance of a family lawyer as well as a property lawyer.
Where a co-habiting couple have children, the party with care of the child will be able to make an application for child support, under the Child Support Act. Where the absent parent is sufficiently wealthy and the provisions of the CSA are insufficient, then an application can be brought under Schedule 1 to the Children Act 1989. This legislation gives the court the power to make orders for lump sum payments, maintenance and the transfer, or more usually the settlement of property. However, this will only benefit the parent with care for the child’s minority. When the child reaches 18 or completes full time tertiary education, the settled property will revert to the absent party. Also, payments, whether lump sum or by way of maintenance, are made for the benefit of the child, not the carer, thought maintenance contains an element of carer’s allowance. This legislation will be of use to only a very limited number of co-habitiees, and it is best to make provision for the future through a Co-habitaton Agreement.
Whereas the well informed co-habitee will be aware that he or she has virtually no financial remedies available on the breakdown of a relationship, a person who has gone through a marriage ceremony will no doubt be confident that he or she will be able to exercise his or her rights for financial relief under the Matrimonial Causes Act 1973. However, as the supermodel Jerry Hall discovered to her cost in 1999, when she issued divorce proceedings against Mick Jagger, no such rights exist if the ceremony did not constitute a lawful marriage. In that case, the parties were able to reach an agreement, the terms of which remain confidential, but there is little doubt that Ms Hall received nowhere near the amount she could have expected the Courts to award her had she have had standing to bring proceedings under the 1973 Act.
The Matrimonial Causes Act gives the Court a wide power of discretion to vary the ownership of property, to divide pension funds and to make awards for capital sums and maintenance. The provisions of the Act are only available to married couples and Civil Partners who are seeking a divorce or dissolution of their relationship. A final Order cannot be made until a Decree Nisi has been obtained and the Order will become effective only when the Decree Absolute is pronounced. Though in practice many former couples will set about implementing a final Order straight away but if one party will not co-operate the Order is not enforceable until the final decree has been pronounced. The financial provisions of the 1973 Act are available even if the marriage has been declared to be void or voidable and has been annulled in consequence.
Section 11 of the 1973 Act declares that a marriage is void where:-
- The parties are within prohibited degrees (that is they are closely related to each other)
- Either party to the marriage was under 16 years of age at the date of the marriage
- Either party was lawfully married to someone else at the date of the marriage
- The parties are not respectively male and female
- The parties entered into a polygamous marriage outside of England and Wales whilst domiciled in England and Wales
Section 12 of the 1973 Act sets out the instances in which a marriage will be voidable. These are as follows:-
- One of the parties was incapable of consummating the marriage
- One of the parties wilfully refused to consummate the marriage
- A party did not give valid consent to the marriage due to duress, mistake or unsoundness of mind
- At the time of the marriage a party capable of giving consent was suffering from a mental disorder of such a kind or to such an extent as to be unfitted for marriage
- One of the parties had venereal disease in a communicable form
- The wife was pregnant by someone other than the husband
- An interim gender recognition certificate has, after the time of the marriage, been issued to one of the parties
- The Respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004
Whereas a voidable marriage is deemed to have subsisted until the time of the annulment a void marriage is deemed never to have subsisted at all, the decree of nullity is, strictly speaking, unnecessary and merely confirms the situation. In spite of this, a party to void marriage can avail him or herself of the financial provisions of the 1973 Act (as indeed can a party to an annulled voidable marriage). This is to ensure that justice is done. It would clearly be inequitable if the innocent party to a bigamous marriage were unable to seek financial relief, particularly if the void marriage was of significant duration and/or it produced children. In fact, the Act does not bar a culpable party from making a claim for financial relief the circumstances of each individual case will be the decisive. In the case of Whiston v Whiston [1995] FLR 198 a Philippina woman who knew that her lawful husband was still alive at the date she married in England was awarded capital provision by the Court at first instance. There had been no prosecution for bigamy. The husband Appealed and it was held that the fact that the wife had not been prosecuted for bigamy was her good fortune, as the offence carries a seven year prison sentence; however, she should not be allowed to profit from her own crime. There was no reason why a female bigamist should be treated differently from a male bigamist and the first instance decision was overturned. It was postulated that where a wife genuinely believed her lawful husband to be dead at the time of a subsequent marriage then a different view might be taken. In Mendal v Mendal [2007] EWCA Civ 437, though the wife did not believe her first husband to be dead, she was under the impression that her marriage to him, in Brazil, had been formally dissolved whereas, in fact this was not the case. The wife had not tried to deceive the husband and though the marriage was void, it was not bigamous in the criminal sense. Hence the husband’s Appeal against an Order for financial provision for the wife failed. Where parties collude in a bigamous marriage, as in the case of Rampal v Rampal [2002] FLR 85, the Court may choose to award financial provision to the bigamist. Here, the wife was held to have engineered the marriage ceremony, knowing the husband to be lawfully married to another woman and then basked in the ‘respectability’ of the marriage state for 22 years, before claiming to be an innocent victim of bigamy.
The offence of perjury may also result in a party failing to obtain financial relief depending circumstances of the case. In the somewhat unusual case of ST v J [1998] FLR 103 the parties were both female. The Respondent was a transsexual who had gained secondary male characteristics by means of hormone injections. He had also undergone a bilateral mastectomy, which proved to be so difficult and painful that he elected not to have phalloplasty. The Petitioner was sexually inexperienced and did not realise that there was anything amiss during the course of the parties’ 16 year relationship. The couple had two children by means of AID. Even when the marriage broke down, the Petitioner sought a divorce on the basis of the Respondent’s behaviour. During the course of the proceedings, it came to light that the Respondent had been born female. The divorce Petition was dismissed and a Petition for nullity was issued and proceeded undefended. The Respondent issued an application for ancillary relief against the Petitioner, who came from a privileged background and was a woman of substantial means. In order to get married, the Respondent had made a declaration in compliance with s16 of the Marriage Act 1949 in which he had falsely sworn that he was a bachelor and knew of no lawful impediment or lawful hindrance to the marriage,. This constituted perjury pursuant to s3 of the Perjury Act 1911, which specifically regulates false statements made with reference to marriage. The Court of Appeal stated that perjury might not always debar the perjurer form successfully seeking financial orders. In this case it was the deception practiced upon the wife by the husband in leading her to believe that he was male and therefore capable of entering into marriage with her which was the decisive factor, being that the deception went to the fundamental essence of marriage. Merely swearing that one was a bachelor when in fact one was divorced or widowed would not be so heinous a falsehood to debar the perjurer from making an application for financial orders.
In the recent case of Hudson v Leigh [2009] EWHC (Fam), the Defendant ‘husband’ was a wealthy man and the Judge, Bodey J, remarked at the outset that the issues were driven by money. In order to claim for ancillary relief the Claimant ‘wife’ had to show that either there was a valid marriage and then seek a divorce or that the marriage was void and seek a decree of nullity. In fact the Claimant sought both remedies in the alternative. For his part, the Defendant sought a declaration that the ceremony did not effect a marriage between the parties. This, the Claimant argued would fly in the face of the Family Law Act 1986, S55 of which gives the Court the power to make a declaration that a marriage was valid, subsisted on a certain date, or did not subsist on a certain date, but which at S58 specifically prohibits the Court from making a declaration that a marriage was ‘void at its inception’. This gave rise to the issue of whether or not there exists the concept of a ‘non-marriage’ or a ‘non-existent marriage’ in English law.
The facts of the case were that the parties had cohabited since 1992 and had a child together in 2001. Though both parties were British, the Defendant had a home in Cape Town and the parties had mainly resided there since 1996. The parties became engaged in 2003. The Defendant, being an ‘atheist Jew’, did not wish to have a religious ceremony, whereas the Claimant, as a ‘devout Christian’ wanted precisely such a wedding. It was agreed that the parties would have a religious ceremony conducted by the Minister of the Church the Claimant regularly attended in Cape Town. The ceremony was to be conducted on the roof terrace of the Defendant’s house in January, with a civil ceremony to take place in a Register Office in England in March. At the South African ceremony the parties exchanged vows and followed the usual order of service, save for the fact that the Minister omitted the words ‘no lawful impediment’ , ‘your lawful wife/husband’ and ‘have been lawfully married’. The parties also failed to comply with certain formalities such as producing identity documents in advance of the ‘wedding’. The Cape Town ceremony was a lavish affair having all the trappings of a normal wedding. Indeed very few of the guests were aware that the occasion was to serve as only one of two ceremonies and was not the couple’s actual marriage. Indeed, the Judge found that even the bride’s father, who had made a substantial contribution to the nuptial celebrations, appeared not to realise that the ceremony was not a legally binding. Sadly, the relationship broke down between the time of the January ceremony and the scheduled civil ceremony in March.
The Claimant issued a Petition for divorce on the basis of the Defendant’s behaviour and also sought a decree of nullity based on the non compliance with certain formal requirements of South African law. The parties each produced a number of their friends and family to swear affidavits dealing with their respective understandings of the nature and significance of the ceremony in Cape Down. Those called by Ms Hudson declaring that they believed the ceremony to be the parties’ real marriage and those called by Mr Hudson swearing that they understood that the Cape Town ceremony was a religious one only to accommodate Ms Hudson’s beliefs, with the legal marriage to take place in London the following March.
The Court considered whether the ceremony satisfied the formal requirements of marriage under South African law. Expert witnesses were called by both parties but the Judge preferred the evidence of the Defendant’s witness and decided that if the ceremony effected a marriage at all, it was a void one. The next point to consider was, therefore, whether the Cape Town ceremony effected a void marriage, a voidable marriage, or no marriage at all. This raised the issue of whether intention to marry was significant. It was argued on behalf of the Defendant that a concept of ‘non-marriage’ had to exist in English law to cater for those circumstances where the ceremony or event in question simply failed to create a marriage. Betrothal or engagement ceremonies were cited as examples. Leading Counsel for the Defendant proposed as a definition of a non or non-existent marriage ‘a ceremony consciously and deliberately conducted by the parties, altogether outside the Marriage Acts (or the marriage laws applicable in the country in which the ceremony took place) where the parties never intended to create, or believed this would create, any recognisable marriage’.
The Judge decided that it would be unrealistic and illogical to conclude that there is no such concept as a ceremony or event which, whilst having marriage like characteristics, fails in law to effect a marriage. The Judge used the example of a marriage taking pace within a play or a nervous couple who had a full dress rehearsal of their wedding ceremony with the vicar using the
full wording of the marriage service. Bodey J decided that the case in question was one in which neither the parties nor the officiating Minister intended the ceremony to be one giving rise to a lawful marriage and that being the case, it could not be successfully argued, as was attempted on behalf of the Claimant that there was a marriage which was voidable for lack of consent.
Though the Judge declared that he was unconvinced that there could be any satisfactory definition to cover this sort of situation, namely a ‘non-marriage’ or non-existent marriage’ and that it was not in his view either necessary or prudent to attempt a definition or test, he nevertheless set out various factors or features which might need to be addressed by a Judge considering this question, namely:-
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 lawful marriage
c. whether the three key participants (most especially the presiding official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage
d. the reasonable perceptions, understandings and beliefs of those in attendance.
Bodey J indicated that this list was not intended to be exhaustive and on their own the individual considerations are not decisive.
The final decision was that the South African ceremony did not constitute a valid marriage or a void one; it did not effect a marriage at all. The Judge went on to say that a declaration of non-marriage would be in the public interest by creating certainly. Bodey J also decided that such a declaration was not outlawed by S58 of the Family law Act 1986, since the specific declaration would be that there was never such a marriage rather than that a given marriage was void at its inception and accordingly he made a declaration that the ceremony in Cape Town did not create the status of marriage as between the parties. The corollary of this decision was that the Claimant was unable to seek financial remedies pursuant to the 1973 Act, though given that the parties had a child, it would be open to her to seek relief under Schedule 1 to the Children Act 1989.
With the proliferation of marriages abroad and increasingly exotic weddings in which the legal purpose of the ceremony is subsumed beneath the outward and visible trappings of the occasion, it is possible more couples will find themselves in a situation in which there has been no compliance with the formal requirements of marriage and consequently no legally binding marriage. The decision in Hudson v Leigh, rather than being an interesting diversion for lawyers could turn out to be highly significant in the future. Couples planning to marry abroad should ensure that they comply with the formalities of the laws regarding marriage of the jurisdiction in which the marriage takes place and that the marriage is properly registered in that country. Foreign marriages cannot be registered in England and Wales (unless one of the parties was a serving member of the British armed forces at the time of the marriage). One can deposit one’s original marriage documents in the General Register Office. When copies of these documents are obtained, they are sealed by the General Register Office and generally constitute evidence as if they were certificates issued by the authorities of the country in which the marriage took place. Couples planning self devised nuptial ceremonies who wish to enter into a lawful marriage would be well advised to go through a civil ceremony as well.
Joanne Lawrence-Hall is an associate in the Family Law Department at Kerman & Co LLP. If you have any enquiries in relation to this article or family law matters, please contact Joanne on 020 7539 7272 or email [email protected]
