Hudson v Leigh

By these consolidated proceedings, Robert Leigh (“Mr Leigh”) petitions for a declaration that a ceremony which took place in Cape Town on 23^rd January 2004 did not effect a marriage between himself and Gillian Hudson (“Miss Hudson”). Miss Hudson asserts to the contrary that the ceremony in question did constitute a valid marriage and she prays for a divorce from Mr Leigh on the basis of his alleged unreasonable behaviour, which he denies. Alternatively she seeks a decree of nullity on the basis of non-compliance with the formal requirements of South African Law.

The above issues are driven by money. If there was no marriage, then Miss Hudson is unable to claim ancillary relief for herself as against Mr Leigh, who is a man of some wealth. If however there was a marriage, whether valid or void, then she can do so once having obtained the appropriate decree.

GH has been represented by Mr Le Gryce QC with Miss Baily-Harris and Mr Leigh by Mr Mostyn QC with Mr Shaw. Both sides have lodged helpful opening presentations, which have been amplified following the oral evidence placed before me.

One of the key issues in contention is as to whether or not there exists in English law a category or concept of a ‘non-marriage’, or a ‘non-existent marriage’(an event with marital qualities, but which fails even to achieve the status of a void or voidable marriage.) Mr Le Gryce maintains that there does not, and he submits that certain reported cases recognising such a juridical entity are wrongly decided. Mr Mostyn describes that submission as ‘nonsense’ and places reliance on those cases.

Mr Le Gryce further submits that the Court cannot step outside the statutory bounds of the nullity provisions of Section 11 and 12 of the Matrimonial Causes Act 1973 by making any declaration in the inherent jurisdiction of the Court, as to do so would offend certain provisions of the Family Law Act 1986. Mr Mostyn disagrees and maintains that a declaration can and should be made that no marriage was ever effected here, not even a void one.

This judgment could have been shorter than it is. However this is a matter of status and, in deference to the well-researched and very differing arguments made to me, it is right go into rather more depth than might have been the case.

Both parties are English, Miss Hudson being 43 and L being 49. Mr Leigh has lived in England throughout, although he has a fine second home in Cape Town, South Africa. They had a relationship from about 1992 onwards, including between about 1996 and 2003 when Miss Hudson was living mainly in South Africa. In June 2001, she gave birth to the parties’ daughter there and in the summer of 2003, the parties became engaged.

It is common ground that the parties’ beliefs of a religious nature could not have been more different. Miss Hudson is a devout Christian; whereas Mr Leigh is described in his Counsel’s Opening presentation as ‘an atheist Jew’. She wished to have a religious marriage ceremony; he did not. She would only have regarded herself as properly married by way of a religious ceremony; he, only by way of a ceremony in a Register Office.

Those differing beliefs presented the parties with a considerable difficulty, which came to be resolved as follows. During part of her time spent in South Africa, Miss Hudson had attended at a particular church, of which the Minister, a Reverend B, was authorised to officiate at ceremonies of marriage. The parties therefore agreed that they would approach him to see if he would conduct a religious ceremony on the roof terrace of Mr Leigh’s Cape Town home (avoiding from Mr Leigh’s point of view the need for a ceremony in a church) which would be followed by a civil ceremony at a register office in England, later fixed for 6.3.04. That way they planned that the beliefs of each of them would be catered for.

Miss Hudson puts it this way in her affidavit on 17.8.07: “… it was our mutual intention that the later civil ceremony would register our marriage. That is not to say that I believed that the vows we made in the religious ceremony [in Cape Town] were to have no meaning: to me; it was of the utmost importance that we be married in the eyes of God. We met with Rev B who was to conduct the religious ceremony in South Africa in advance of the same and we agreed a form of wording for the ceremony which we believed would not result in a registable marriage at this time. In summary, we agreed with him that he would use the usual order of service, but omit the words “no lawful impediment”, “your lawful wife”, “your lawful husband” and “have been lawfully married”. In preparing for the religious ceremony, we also consciously failed to comply with certain formalities which are usually required for a marriage to take place, such as producing our identity documents in advance of the wedding”.

Mr Leigh says in his affidavit in reply: “… because of my lack of religious beliefs, I wanted to be legally married in a civil ceremony. However, because of her positive [religious] beliefs, Miss Hudson wished for us to participate in some form of religious ceremony. I also wanted to be legally married in England, with my family present as most of them could not fly as far as South Africa. After discussion it was agreed between Miss Hudson and I that we would make enquiries to see whether it was possible to have a religious, but not legally binding, ceremony in Cape Town and then subsequently a civil legally binding marriage ceremony in England.” Miss Hudson responds in her second affidavit: “… I think only a handful of guests were aware that it was not intended that the marriage ceremony in Cape Town should have legal significance, but serve as one of two ceremonies, at the second of which we would sign a register.”

On 14.1.04, nine days before that ceremony, a Miss V (a South African attorney instructed on Mr Leigh’s behalf to draft a pre-nuptial agreement) wrote to his English solicitors saying that she had been in touch with Rev B and continuing: “… I took the liberty of advising him that the parties did not want a marriage ceremony in South Africa, as they would be getting married in the UK and he confirmed that this was what he understood the case to be. He says that he will not be using the usual formula for a marriage ceremony, but that the service will be in the nature of a blessing ceremony prior to the actual marriage ceremony”.

The pre-nuptial agreement just mentioned was signed by the parties at Mr Leigh’s instigation on the morning of the ceremony on 23.1.04 and it recites that both parties had received separate and independent legal advice. That was correct, although the legal advice to Miss Hudson was somewhat hurried and took place over the telephone, as she was in South Africa and her solicitors were in England. Paragraph 1 of the agreement states: “… This Deed is made in contemplation of and is conditional upon the intended marriage of Mr Leigh and Miss Hudson on 6^th March 2004. It is recorded that the parties intend to participate in a religious ceremony in Cape Town on 23.1.04”. On the face of it, that document encapsulates the perceived relative significance of the two ceremonies, the actual marriage being intended to be effected by the English ceremony on 6.3.04.

That ceremony intended for 6.3.04 was booked by the parties to take place at Chiswick House, an historic building in West London authorised for the celebration of civil marriages. It is common ground that they sent out invitations for it to their friends and relations shortly after 5.1.04, i.e. well before the Cape Town ceremony on 23.1.04.

Unhappily, as between that ceremony in South Africa and the intended ceremony in England, the relationship between the parties broke down and the proposed ceremony at Chiswick House was cancelled. But for that, the parties would have been married by the English ceremony and these proceedings would not have been constituted as they are.

Rev B has recently given a statement about his role in the Cape Town ceremony. He agrees with the parties that they contacted him in November 2003 and explained to him their differing religious views. He says they asked “… whether it would be possible for me to conduct a religious ceremony only, as they wanted to get legally married in England. I recall initially telling them that they would need to produce their identity documents or passports, but once I understood they only wanted a form of religious ceremony and would not be signing the Marriage Register, I said that I did not need them as this was not intended as a legal ceremony.”

He then refers to a meeting which he had with both parties on 22.1.04, the day before the ceremony, and continues: “… we discussed and agreed the form of ceremony for the next day. I made the point that I had made once before, that in my view, since they were not signing the register after the ceremony, they would not be legally married anyway. I was prepared to go through a religious ceremony, but I knew that it was not Miss Hudson and Mr Leigh’s intentions that I marry them at law. I was aware that they were planning to marry at a civil ceremony in London in March 2004 and we discussed this again during our meeting … I conducted the ceremony on the roof of Mr Leigh’s house, omitting parts of the usual formula, to comply with Mr Leigh and Miss Hudson’s expressed wishes”.

In cross examination by Mr Mostyn, Miss Hudson accepted the accuracy of the above evidence given by Rev B in his affidavit.

Rev B had been expected to give evidence at this hearing by video link from South Africa, but his commitments turned out not to enable this. Mr Le Gryce submits that, had he been able to cross examine him, then he (Rev B) would probably have accepted that he had felt that he was marrying the parties in the eyes of God. I cannot say how Rev B might or might not have responded to such a question and it seems likely to me that he would have made a distinction between Miss Hudson and Mr Leigh, being aware that Mr Leigh does not have any religious beliefs. However, I do accept that he would very probably have said that he would have felt that, for Miss Hudson, he was marrying her in the eyes of God.

I have watched a DVD of the Cape Town ceremony and read a transcript of it. For the parties and their guests it was clearly a wonderful occasion: a fabulous roof-top setting overlooking a sunlit sea; a very happy couple, appearing very committed and in love; their daughter (then aged 4) a delightful bridesmaid; Miss Hudson in full wedding trousseau and the guests dressed-up to the nines. There were hymns, a religious ceremony (of which more below) a splendid sit-down dinner with speeches, and the evening rounded off by dancing. There was a typical ‘Order of Ceremony’ sheet describing the proceedings as “the marriage of …” and referring to “the marriage vows” and “the exchanging of rings”.

On the DVD, Rev B is seen and heard to welcome everyone to “the most important day” in the lives of Miss Hudson and Mr Leigh. He refers to marriage as being a gift of God and speaks of the parties “… beginning a new life together today in the community, as a married couple”. He then asks each party in turn whether he/she takes the other as his/her wife/husband respectively, to which they reply in the affirmative, Mr Leigh taking Miss Hudson ‘to be his wife’ and she taking him ‘to be her husband’. The rings are exchanged with the words “I give you this ring as a sign of our marriage. I want you to know I love you and honour you …”, after which Rev B says: “… I therefore proclaim Robert and Gillian that you be husband and wife together … those whom God has joined together, let no man divide”. He then invites the congregation to stand “… to welcome Mr and Mrs Leigh”.

What Rev B did not do however, as previously agreed with the parties, was to ask them whether there was “any lawful impediment” to their marrying: nor did he refer to them as “lawful husband”, nor “lawful wife”: nor declare that they were “lawfully married”. There was, as intended, no process of signing the Marriage Register and Rev B never transmitted it to the appropriate Registration Authority in South Africa, there being no point. As appears from part C below, these are significant formal omissions under South African law, as was Rev B’s earlier omission to verify the parties’ identity documents.

Once the parties had returned to England following the Cape Town ceremony, they went to make the arrangements with the relevant Registrar in respect of the proposed civil ceremony at Chiswick House booked for 6.3.04. There they went through all the necessary formalities for an English Register Office wedding. Amongst other things, they found they had to take an Oath that they were not married, which caused Miss Hudson some difficulty. As she says: “… we were both somewhat perplexed. We did not want to confuse the Registrar. We agreed that we would simply say that we had [had] a religious blessing, which did not amount to a marriage and we could therefore take the oath. Notwithstanding this I did feel bad saying it. It felt extremely dishonest and I was flushed and nervous as I was saying the oath.”

It was shortly thereafter that the relationship broke down and no civil ceremony in England ever took place. Thus, the status of the parties in law is dependent on the status of the ceremony in Cape Town.

Thus far, I have glossed over what Mr Mostyn asserts to have been a change in Miss Hudson’s case, occurring as between (a) her affidavit of August 2007 in support of her petition for divorce, and (b) her affidavit of March 2009 prepared for this hearing. It was in the first of those affidavits that she spoke of the parties failing to comply with certain required formalities and intending so to word the ceremony so as ‘not to result in a registerable marriage’. Thus Mr Mostyn says that Miss Hudson had seemed to be accepting that the ceremony had not been intended to create nor had created a valid marriage. He submits that by the time of her March 2009 statement, however, Miss Hudson had shifted her position, in that she then said “… I believe that we were married legally [in Cape Town] but this is disputed by Mr Leigh”.

As a result of this very recent development, Mr Leigh urgently arranged for 7 members of his family and friends to swear affidavits dealing with their understanding of the significance of the ceremony in Cape Town. In summary, they all say they realised that the real marriage was going to be later in England and that the Cape Town ceremony was but a religious one, to accommodate Miss Hudson’s beliefs. This understanding is said by Mr Leigh’s witnesses to be based on what they had been told by Mr Leigh, although his brother N and Ns’s wife both also depose to a dinner conversation with Mr Leigh and Miss Hudson sometime before the Cape Town ceremony, when Mr Leigh and Miss Hudson told them they were not going to be legally married in Cape Town Mr Leigh own, as it was only going to be a religious ceremony. Miss Hudson responded to the evidence of Mr Leigh’s witnesses by arranging for statements from 12 members of her family and friends. The thrust of these is that they had believed the ceremony which they witnessed in Cape Town to be the actual marriage of Miss Hudson and Mr Leigh. None of the supporting witnesses of either side was called to give evidence before me, except for Miss Hudson’s father, who told me he had believed and understood the South African ceremony to be the parties’ real marriage, but for which he would not have paid the substantial sum towards the occasion that he did.

I accept Mr Mostyn’s submission that there has been an element of re-positioning as regards Miss Hudson’s case. In her 2007 affidavit taken as a whole, she was saying that she, Mr Leigh and Rev B had intentionally put together a ceremony which would not be legally binding (albeit that for her she would be married in the eyes of God) so that the door would have been kept open for them to be lawfully married in England. Miss Hudson’s stated belief now that the parties were legally married is difficult to reconcile with that 2007 affidavit, particularly in view of her acceptance in cross-examination of the evidence of Rev B that it was “… not intended as a legal ceremony”.

I need formally to deal with the affidavit evidence of Mr Leigh’s brother and sister-in-law about the dinner conversation just mentioned, although my decision would have been the same without it. When that conversation was put to Miss Hudson by Mr Mostyn in cross examination, she initially said she did not recall it, and only when pressed did she say that she did not think it had occurred. Although I have not heard oral evidence from Mr Leigh’s brother and sister-in-law, their affidavit evidence is so utterly consistent with that which Miss Hudson has accepted in cross examination at this hearing, that I do not think she is caused injustice by my finding as I do that the conversation did take place as asserted.

As regards the evidence of the supporting witnesses, it seems clear that those guests of Mr Leigh did not think or believe they were witnessing a legally binding ceremony; whereas those present as guest of Miss Hudson did. This is surely a product of what they had been previously told, in that Mr Leigh would naturally have emphasised the legal significance for him of the proposed English ceremony, whereas Miss Hudson would naturally have emphasised the significance for her of the religious ceremony. In my judgement based on the DVD, guests watching the ceremony without (a) any prior knowledge that it was not intended to constitute a legal marriage and (b) a fair degree of knowledge of the normal wording and formalities of marriage, would not have realised or suspected that they were not participating in the parties’ actual marriage. Notwithstanding Mr Mostyn’s criticisms of Miss Hudson’s father’s evidence I place him in this category. It is unsurprising that the witnesses from the different ‘sides’ had differing perceptions of the ceremony and I do not think their evidence ultimately affects the determination of its legal status.

Before leaving evidential points, I should mention something which Mr Leigh himself said in the witness box, when he spoke of the parties “acting out their parts” at the Cape Town ceremony and of their merely “play-acting”. Mr Le Gryce took him to task for using these expressions and submits that they were unworthy descriptions of the occasion, unfairly demeaning its true status and significance.

This differing approach to the expression “play-acting” is in my judgment readily explicable according to how the term is being used. Having seen the DVD of the ceremony, I do not think for a moment that Mr Leigh was merely shamming when he publicly expressed his love for Miss Hudson, since everything comes over as very loving and romantic. Equally there is no doubt that for Miss Hudson the ceremony was religiously and spiritually genuine. At those levels and in that sense, there was no “play-acting”. However, looked at in terms of the legal significance of what was being undertaken, Mr Leigh’s use of the description was I think accurate. In hard reality, the parties were in effect “play-acting” (even though for Miss Hudson the ceremony was genuine and binding in the eyes of God) by reason of their mutual prior agreement with Rev B that it would not make them legally husband and wife. Understanding Mr Leigh’s evidence in that light, as I do, he cannot in my view be seriously criticised for how he expressed himself in the witness box. Nor did I get any impression that, in using that description, he was intending to minimise the religious significance of the ceremony for Miss Hudson, nor the reality of their mutually expressed love at the time, before everything went wrong.

My conclusion on the evidence overall, and notwithstanding Miss Hudson’s presently stated belief as to the validity of the marriage, is that she did not at the time of the ceremony intend or believe it to be legally binding, any more than Mr Leigh or Rev B did. What was intended, planned and put in effect, was a ceremony which would look like a wedding. Hence she was later able as a devout Christian to swear the Oath before the English Registrar that she and Mr Leigh were not married. I add for completeness that if, by expressing her belief in the validity of the marriage, Miss Hudson really only meant that she has felt herself married in the eyes of God, or else was merely relaying her perception of some advice which she may have received, then I would have no difficulty in accepting that; but neither would I am afraid have any bearing on the legal status of the ceremony.

If the factual findings about the Cape Town ceremony are properly to be construed such that no marriage at all was effected by it, then that would of course be an end of the matter. It would be unnecessary to decide whether the formal deficiencies in respect of the ceremony would have meant that it failed to create a valid marriage and instead created only a void or a voidable marriage. However, it would still be desirable that I should make a finding as to whether or not the formal requirements for a valid marriage were sufficiently fulfilled and so I turn to that issue.

It is common ground that under English conflict of law rules the formal validity of marriage is governed by the “lex loci celebrationis” (the law of the place of celebration) here by South African law. It is equally common ground that, on the facts of this case, all questions as to the “essential validity of marriage” are governed by English law.

Each party has called an eminent and experienced expert about the formal requirements of marriage in South African law. The instructions to such experts were by agreement strictly limited to the issue of formalities, so as to avoid any straying into questions governed by English law. Both chosen experts have distinguished careers at the South African Bar and are part time members of the Judiciary there. However they do not agree as to how the South African Court would be likely to rule on the facts of this case.

Mr D refers in his detailed report to the South African case of Ex-parte Dow 1987 3SA 829 D, where Broome J had to consider the validity of a marriage solemnised in the garden of a property, instead of inside it as strictly required by the Marriage Act 1961. Having discussed differing interpretations of various differently worded statutory requirements, he (Broome J) went on to say: “… I treat this as an indication that the legislature did not intend strict compliance with the provision that a marriage be solemnised in a private dwelling house and that where, as in this case, the parties were competent to marry, that is there was not [sic] legal impediment to their marriage, the ceremony was performed by a marriage officer and all concerned bona fide intended and believed it to be a valid marriage, the objects of the Act have been achieved, despite the fact that the marriage was solemnised in the garden outside the house and not inside the house with open doors”. It was partly by reference to that authority that Mr D concluded that the deficiencies of form in this case would not cause the South African court to regard the marriage as null, with the result that in his view the issue in that jurisdiction would be one of dissolution of marriage. I shall revert later to Broome J’s proviso as to the need for a bona fide intention and belief that the ceremony concerned was a valid marriage.

Disagreeing with Mr D’s opinion, Mr L relies on the strong negative wording of S12 of the Act about due identification in advance of a marriage ceremony (“… no marriage officer shall solemnise any marriage unless …”). He further points to S30 (3), which sets out certain specified saving provisions for some failings of form, particularly as regards the requirement that the minister is to ask the parties formally about any “lawful impediments” and that he is to declare them “lawfully married” (steps omitted her by Rev B). S.30(3) provides in those respects that any “…error, omission, or oversight committed in good faith” by the marriage officer or the parties shall not cause the marriage to be void, if the marriage was in every other respect solemnised in accordance with the provisions of the Act.

There is force in Mr L’s view that, since the South African Parliament thus provided expressly for certain specified deficiencies not to be fatal, the South African Court would probably be slow to overlook other deficiencies which Parliament had not chosen so to specify. Further, in order for the Court to waive those deficiencies set out in S30(3), a marriage has to have been “… in every other respect solemnised in accordance with the provisions of the Act”, which this was not, given e.g. the failure to verify identities or to sign the register. I also accept Mr L’s opinion that the South African Court would be likely to be influenced by the sheer number of omissions and failures of form, described by him as “compound non-compliance”.

Last, I consider there is a pointer in the above wording of S30(3) whereby, for the statutory discretion to apply (enabling the South African Court to dispense with required formalities) the failings involved have to have been due to “….an error, omission or oversight committed in good faith”. That implies that a more stringent view would be likely to be taken by a South African Court in respect of omissions and failings of form brought about deliberately, as here.

Overall, having considered all the written and video-link evidence of both experts, I consider and find that the opinion and reasoning of Mr L is to be preferred, as being more likely to be in line with the conclusion of a South African Court. Accordingly, if the Cape Town ceremony is held to have effected a marriage at all, then it was and is a void one for failing to comply with the formalities required by the “lex loci celebrationis”. So Miss Hudson would be entitled to a decree of annulment, rather of divorce.

Mr Mostyn submits that the ceremony was self-evidently not a marriage, notwithstanding that it clearly had the trappings of one. This is he says because the parties did not intend to get married by way of that ceremony. They may have intended, as indeed they did, to get married in principle, but by way of a subsequent ceremony, which intention he argues is insufficient. If the marriage had been intended to be valid, then (he says) the parties could not have conscientiously been intending to go through a later civil ceremony of marriage in England. Further, if the English ceremony had taken place, then that would clearly have been the date and ceremony from which the parties would have derived their married status, and not from the earlier ceremony in Cape Town.

It follows, says Mr Mostyn, that there has to exist a concept in English law of a ‘non-marriage’ or a ‘non-existent marriage’, so as to cater for those circumstances where the ceremony or event in question simply failed to create a marriage. Thus, a betrothal or engagement ceremony would not qualify he says as a void or voidable marriage, for the simple reason that it was not a ceremony of marriage.

Mr Mostyn supports this argument by referring to academic works on the topic and to three decided authorities. In Joseph Jackson’s seminal book The Formation and Annulment of Marriage second edition 1969, the author states at p.85 under the heading “Distinctions between void and non-existent marriages” that: “… The question whether a marriage is void, voidable or valid presupposes the existence of an act allegedly creative of a marriage status. In concubinage and the like, no act of the requisite nature exists. In those places where a marriage requires a declaration before a registrar or priest, a private and secret declaration of consent does not create any kind of marriage, not even a void one …”; and on the following page: “… a void marriage is still a marriage in the sense that it has to be distinguished from the non-existent marriage or mere cohabitation of man and woman …”. Then in the 18^th edition of Rayden, it is stated at paragraph 7.4 that “… a void marriage must be distinguished from a non-existent marriage …”, reliance for that proposition being placed on A-M v A-M (divorce: jurisdiction: validity of marriage) 2001 2 FLR 6 and Gandhi v Patel 2002 1 FLR 603.

Mr Mostyn also seeks support from an article “When are we married? Void, non-existent and presumed marriages” by Rebecca Probert, lecturer in law at the University of Warwick [Vol. 22 Legal Studies 2000, at page 398]. There the author expressly recognises the concept and entity of ‘a non or non-existent marriage’, arguing: “… it is clear from the logic – or lack of logic – of the Marriage Act 1949 that a concept of non-marriage is necessary, since a marriage conducted outside the framework of the Act can be neither void nor valid”.

As to remedy if his arguments succeed, Mr Mostyn submits that the Court has jurisdiction to make a declaration to the effect that the Cape Town ceremony created no marriage. He relies upon R S C O. 15 R. 16, which states that: “No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed”. He recognises that S58 (5) (a) of the Family Law Act 1986 (below) outlaws any declaration that a marriage was void at its inception, but submits that the very wording of that section presupposes “a marriage”, which here there was not. He makes the same point in respect of S.11 and S12 of the Matrimonial Causes Act 1973 (the grounds for nullity) stressing that both sections are prefaced by the words “… a marriage celebrated etc. etc…” [emphasis added] which he says begs the very question raised by this case.

In argument, Mr Le Gryce challenged Mr Mostyn to provide a meaningful definition of a ‘non-marriage’ or a ‘non-existent marriage’, asserting that the difficulty of so doing militates against the existence of the concept. In response Mr Mostyn proposed the following: “A non-existent marriage is 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”.

Mr Le Gryce’s primary argument is that the Cape Town ceremony created a valid marriage. His submission (although now rejected above) is that it did sufficiently satisfy the formalities of South African law and therefore that, since the parties were wishing to become married and intending to go through a religious wedding ceremony, there is no good reason for a valid marriage not to be outcome.

On his more strongly pressed alternative case, Mr Le Gryce argues for a decree of nullity, submitting that there is no such concept or entity in English law as a ‘non-marriage’ or a ‘non-existent marriage’. The MCA 1973 creates a code for flawed marriages, in which neither concept appears. The only question arising out of the Cape Town ceremony on his approach is thus whether it produced a valid, or a void, or a voidable marriage and so the only possible outcome in law is either a decree of divorce or a decree of nullity.

Mr Le Gryce argues that Mr Mostyn’s three authorities of A-M (above) Ghandi (above) and Burns v Burns 2008 1FLR 813 were obiter and/or wrongly decided. He cites two ‘Jewish marriage’ cases, Neuman v Neuman The Times 15^th October 1926 and Kelly v Kelly The Times Law Reports 16^th December 1932 as showing that, where a civil ceremony was undergone in the belief that a religious ceremony was to follow, the consequential legal status was held to be that of a void marriage (as distinct from a ‘non-marriage’) resulting in a decree of nullity.

As to remedy, Mr Le Gryce argues that the court has no jurisdiction to make a Declaration in the terms sought by Mr Mostyn. Further, he relies on the findings of void marriages in Kassim v Kassim 1962 P 224 and in Corbett v Corbett (otherwise Ashley) 1971 P83, where the proper remedy was held to be a decree of nullity, with no option to make a declaration of a non-marriage. He and Miss Bailey-Harris attractively and succinctly sum up Miss Hudson’s case by the proposition that: “… if there is no procedure to establish a non-marriage, there is no substance in the proposition that there is such a legal concept and the absence of such a concept explains why there is no procedure for investigating when it could arise”.

Last (and without detracting in any way from his primary argument that no such concept as ‘a non-marriage’ exists) Mr Le Gryce responds to Mr Mostyn’s proffered definition by way of the following possible test: “… whether a reasonable person, without any specialist knowledge of the law of marriage, would consider that the ceremony was or might be a valid marriage according to the law of the relevant state.” If ‘yes’, then the ceremony concerned would have effected a marriage, being either void or voidable according to the deficiency involved. If ‘no’, then the ceremony might be characterised as a ‘non or non-existent’ marriage.

The relevant underlying statutory structure is briefly as follows. S11 of the MCA 1973 states that “… a marriage celebrated after 31.7.71 shall be void on the following grounds only …” and it then sets out the following main grounds (in summary) namely: that the parties were within the prohibited degrees; or that either party was under 16, or already lawfully married; or that the parties were not respectively male and female; or that they had married in disregard of certain requirements as to the formation of marriage.

S12 of the same Act states that “… a marriage celebrated after 31.7.71 shall be voidable only on the following grounds …” and it then goes to set out the following main grounds (in summary) namely: non-consummation due to incapacity or wilful refusal; mental disorder; venereal disease; the wife's pregnancy by another man; or that “… either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind, or otherwise,” [S12 (c)]. As regards the distinction between a void and a voidable marriage, it is trite law that the former is void and of no effect from its inception, such that a decree of nullity is strictly unnecessary and merely confirms that situation; whereas the latter is treated as existing and as having existed up until a decree of nullity is pronounced.

S 55(1) of the Family Law Act 1986 authorises the court to make a declaration (a) that a marriage “…was at its inception a valid marriage”, or (b) that a marriage “…subsisted on a date specified in the application”, or (c) that a marriage “…did not subsist on a date so specified”.

S 58(4) of that Act provides that: “No declaration which may be applied for under this Part [which includes S 55] may be made otherwise than under this Part by any court”.

Last, but not least as regards this hearing, S 58(4) of that Act provides that: “No declaration may be made by any court whether under this part or otherwise (a) that a marriage was at its inception void…”

These provisions of the 1986 Act were intended strictly to regulate the use of the declaration procedure, since it does not give rise to any rights to apply for ancillary relief, and would otherwise offer a way of circumventing the procedure of annulment, which does give such rights. Confirmation for this proposition appears from paragraphs 3.18 and3.19 of the Law Commission Report “Family Law, Declarations in Family Matters” [Law Com. No. 132 of 1984], being the precursor of the Act of 1986, which clearly lay down the philosophy that annulment, with its potential for financial relief, “… should not be capable of being evaded by recourse to the declaration procedure”.

One issue here is as to whether the facts fall within any of the above grounds for annulment set out in S11 or S12 of the MCA 1973, in which case Mr Mostyn would quite rightly accept that a decree of nullity would be the correct outcome. There could hardly be a declaration under the RSC where the circumstances were found to be within the grounds prescribed by Parliament for a decree of nullity. In the pre-1986 Act case of Kassim (above) on which Mr Le Gryce relies, a marriage was held to be void because it was bigamous, following which finding Counsel for the husband sought a declaration to that effect, whilst Counsel for the wife sought a decree of nullity. Having referred to the former practice of the ecclesiastical courts, Ormrod J held that there was no room for any declaration under the RSC and that the W was entitled “ex debito justitie” (as of right) to a decree of nullity.

Nine years later in Corbett, it was ruled that the “wife” had been throughout of the male gender and so the marriage was held void for not being ‘the union of one man and one woman’. Thereupon, Counsel for the husband sought a declaration, but this time that the marriage was consequently a sham and not a marriage at all (as Mr Mostyn seeks here) whilst Counsel for “the wife” sought a decree of nullity. Again Ormrod J held that there was no discretion to grant anything other than a decree of nullity and he rejected any possibility of a declaration under the RSC. In so doing he also found that no such a declaration would have been made by the ecclesiastical courts prior to 1857, as from which year, by virtue of the Matrimonial Causes Act 1857, the jurisdiction of those courts in matrimonial matters was transferred to and vested in what is now the Family Division of the High Court.

Those two cases, coupled with the wording of S58 (5) (a) of the FLA 1986 itself (above) fortify Mr Le Gryce in his submission that there is no jurisdiction to make any declaration here and that the only legally possible outcome (if there is not to be a divorce) is a decree of nullity.

I make two observations (really the same point) on these arguments. First, in both Kassim and Corbett, both parties to the (void) marriages in question were clearly wishing and intending by the ceremonies concerned to become married, i.e. to achieve the status of Husband and Wife. Thus, there was no room on the facts there for any submission like that advanced here, that the parties’ intention not to become married by the ceremony in question meant there was no marriage at all. Given the findings in those two cases that each involved a void marriage, it comes as no great surprise that the result was a decree of nullity in respect of each. Second, the arguments presented to me by Mr Le Gryce based on S11, S12 of the MCA 1973 and S58 (5) of the FLA 1986 are predicated on there having been “a ceremony of marriage” which wording begs the real question here, in turn leading back to the issue as to whether there is or is not a concept of ‘non marriage’ or ‘non-existent marriage’ in English law.

On that issue, the main case to which I have been referred is that of A-M-v-A-M (above) where, simplifying the facts, the parties went through a ceremony conducted in a flat in England by an Islamic Mufti, which was intended to be a formal marriage by the Islamic process. Since it did not purport to be a marriage according to the Marriage Acts, it gave rise to the question as to whether it created any status at all in English law capable of being the subject of a decree of nullity. Hughes J (as he then was) held that it did not. He said “… the question which arises is what is and what is not a ‘marriage’, when contracted in England and Wales for the purposes of S11. Plainly it is not every event to which somebody seeks to apply the label ‘marriage’ which is within the section, leading to a decree of nullity and the open door to all forms of ancillary relief. Mr Posnansky did not submit otherwise.” (Pausing there, Mr Le Gryce submitted to me at this hearing that Mr Posnansky should have done). “… A clear example of what would be outside it might be a staged dramatic marriage ceremony conducted in a play, or in the course of a television soap opera. Another might be the exchange of promises between small children. But the same would apply, as it seems to me, to ‘alternative marriage’ rites consciously and deliberately conducted altogether outside the marriage acts and never intended or believed to create any recognisable marriage”.

Hughes J went on to cite R v Bham 1966 1QB159, a decision of the then Court of Criminal Appeal, where the defendant had performed a Nichan ceremony of marriage in England in accordance with Islamic law, likewise in a private flat. He was prosecuted for and convicted of the criminal offence of knowingly and wilfully solemnising a marriage in a place other then a place permitted to be used for the purpose by the Marriage Act 1949. His conviction was however quashed by the CCA because it was held that he had never intended to effect an English marriage, nor had purported to do so. Thompson J stated at 169B that: “… for the Act to have any application, the ceremony in our judgment … must be at least one which will prima facie confer the status of husband and wife on the two persons”. As this was not the case, the conviction could not stand.

Reverting to AM v AM itself, Hughes J concluded that the ceremony had “… in no sense purported to be effected according to the Marriage Acts, which provide for the only way of marrying in England. The fact that the husband was known by all concerned to have another existing wife is of course one important reason why this was so. It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity.” [para 58].

That decision in A-M is said by Mr Le Gryce to be obiter, because Hughes J went on to find in any event that there was in law a valid marriage, arising out of the presumption of long cohabitation with the reputation of the parties being married, with the result that the marriage was susceptible to dissolution by way of divorce. Mr Mostyn accepts that Hughes J’s comments were obiter, as they clearly were; but he submits that they are very persuasive, as being fully in accord with the above academic works and as having been quite specifically followed in Ghandi v Patel (above). Mr Le Gryce further submits that A – M is flawed by reason of the law not having been fully argued, for example in that Hughes J was not referred at all to the key sections of the Family Law Act 1986. I am not however clear how or why this omission might have led to a flawed decision, since (even if it were right that Hughes J could not have made a declaration) he could and did make findings notwithstanding about the validity of the actual ceremony, albeit that they turned out to be rendered obiter by his further findings as to the way in which the parties conducted their lives thereafter.

The reasoning in AM v AM was adopted in Gandhi v Patel (above), where the issue was whether an applicant for financial relief under the Inheritance Act 1975 was within the statutory category of “a wife” and thus able to claim against a deceased’s estate. Was she “a person who in good faith [had] entered into a void marriage with the deceased” pursuant to that Act? The ceremony there was a Hindu one, not purporting to comply with the requirements of English law, which had been conducted in England by a Brahmin Priest in an Indian restaurant. Park J’s conclusion, somewhat to his own surprise (paragraph 31) was that, rather than creating a void marriage, the ceremony had “…created something which was not a marriage of any kind at all, not even a marriage which was void. It might be described as a non-marriage rather then a void marriage”. And he went on: “… To draw a distinction between a non-marriage and a void marriage may seems artificial and elusive to the uninitiated – a class which until very recently included myself – but I am now convinced that the distinction exists …”. In so concluding, Park J spoke of the decision in R v Bham as having “… proceeded on the basis, equivalent to a holding, that the Nichan ceremony gave rise to what I have termed, for the purposes of this Judgment, a non-marriage.” Then having cited AM v AM, and acknowledging that Hughes J’s dicta were obiter, he stated that he found those dicta to be convincing, and the decision itself to be “decisive”.

Park J referred to one other relevant decision, that of Gereis v Yagoub 1997 1 FLR 854, where a purported ceremony of marriage at a Coptic Orthodox Church, unlicensed under the marriage Act 1949, was held by HH Judge Aglionby to be a void marriage. Rejecting the respondent’s contrary submission that the ceremony had created no marriage at all (a ‘non-marriage’) H.H. Judge Aglionby took account of the fact that the ceremony “… bore the hallmarks of an ordinary Christian marriage and both parties treated it as such …” and that those who attended it “….clearly assumed that they were attending an ordinary Christian marriage”. Thus he concluded that a status of more than a non-marriage had been achieved, namely a void marriage, void for failing to satisfy the necessary formalities of a valid marriage.

Most recently, in Burns v Burns 2008 1 FLR 813, Coleridge J described various formal shortcomings as regards a ceremony conducted in a hot-air balloon over California as being “… enough, of course, to render the marriage invalid, but nowhere near to the category of cases where the marriage can be described as a non-marriage and so disentitle the petitioner even to a nullity decree” [emphasis added]. Mostyn says the implication is clear that, if Mr Burns’ evidence had been believed (that the ceremony had just been a sham) then the outcome would have been a finding of a ‘non-marriage’. Mr Le Gryce on the other hand says that Burns is of no value whatever, since all it did was to follow the thinking of the earlier cases, which were obiter and/or flawed.

I would find it 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. Such is the ingenuity of human beings that we will always be able to come up with some sort of ritual or happening which one party claims created a marriage, but which the other says fell short of doing so. Rare though this will be, the law has to be able to determine the issue without being constrained (except of course where statute so requires) to go down the nullity route. By reference to the examples given in A – M, Rebecca Probert concludes in her thoughtful article that: “… it is clearly necessary to have a concept of non-marriage…”. In her opinion, the ‘marriage within a play’ example (such as in Romeo and Juliet) raised hypothetically by Hughes J, is a ‘non-marriage’ and she suggests that this is most logically so because it in no way ever purports to be a real marriage, a feature which she suggests is linked to, but distinct from, the issue of the parties’ intentions. The concept of ‘non-marriage’ should she argues: “…also apply to alternative, self-devised rituals, should anyone wish to argue the legal validity of, for example hand-fasting or a broomstick wedding” (these being old rites here and on the continent, thought by some in days gone by to create married status).

It is inherently difficult to come up with examples (of a questionable ceremony, ritual or event) which do not appear fanciful; but take a nervous and eccentric couple who wished to have a full dress-rehearsal of their wedding ceremony, so as to be sure that everything would go alright on the day. Assume that the vicar was present and that he used the full wording of the marriage service. Assume wedding-outfits, bridesmaids, flowers, music, an Order of Ceremony and the presence of many of the intended guests, but with its being known that the occasion was not the real thing. What if that the relationship were then to break down prior to the actual wedding day?

When I put this example to Mr Le Gryce, he said it would be a void marriage (it clearly could not be a valid one); but I do not agree, because it was but a rehearsal and was neither arranged to, nor intended to, nor was itself purporting to achieve any legal outcome at all (even though in principle the parties’ underlying wish and purpose was to be married). This admittedly unlikely scenario is not so far removed from the present case, where the three key participants, Miss Hudson, Mr Leigh and critically Rev B, all intended that the ceremony should positively not create the status of marriage and were purposely responsible for omissions and deficiencies to that end. I distinguish the possible example of where the minister is intending to celebrate a marriage in the normal way, but where the parties are participating for a (perhaps) drunken bet, or dare: that is a very different matter and would call for quite different consideration should it arise. Nor does it matter in my judgment that some of the guests here thought they were attending the parties’ actual wedding. Although the beliefs and perceptions of persons present must be a relevant consideration, those beliefs surely cannot be decisive in converting an occasion which all three participants fundamentally meant not to be effective, into a marriage in law: and this must be all the more so where there lacked any unanimity of perception amongst the congregation.

So in my view the Court must be able, in the rare cases where such a point arises, to rule that some questionable ceremony or event, whilst having the trappings of marriage, failed fundamentally to effect one, such that it neither needs nor is susceptible to a decree of nullity to determine its lack of any legal status: ie to find in convenient shorthand that it is a ‘non marriage’ or a ‘non-existent marriage’. The cases cited above offer ample persuasive authority for such a concept and I am not persuaded that they were wrongly decided.

It remains to address specifically the effect of S12 (c) of the MCA 1973, whereby (to repeat) a marriage is voidable on the grounds that “… either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”. Miss Hudson cannot rely on ‘lack of consent’ in seeking a decree of nullity (nor could Mr Leigh if he wanted to) because there is 3 year limitation period under S 13(2) of the MCA 1973, in respect of which these proceedings were several months out of time. Mr Le Gryce submits however that the result of this is to convert what was (on this hypothesis) originally a voidable marriage for lack of consent, into an effectively valid marriage for which the requisite remedy is a dissolution. When I put to him in argument that the absence of any ‘intention to create legal relations’ (i.e. to create the legal relationship of marriage) must be a very relevant factor in this case, he responded by relying on Neuman and Kelly (above). In both those cases (oversimplifying the facts) foreign petitioners for nullity who did not understand much English had attended at register offices where they had undergone ceremonies of marriage in the belief that they would not be legally married until a subsequent Jewish religious ceremony. In both cases, the Law Reports make clear that the arguments for them were put on the basis of mistake as to the nature of the ceremony. Hence in Neuman, Lord Merrivale P held that “… the whole proceedings were the result of an error arising from an innocent misapprehension” and in Kelly that “… the petitioner, when she went through the form or ceremony was not aware that it was a ceremony which would make her and the respondent man and wife …”. So in both those undefended suits, he pronounced decrees of nullity. However that outcome is explicable on the basis of a lack of consent through mistake, thus bringing those cases squarely within what would now be S12 (c) of the MCA 1973, and so leading straightforwardly to decrees of nullity.

So should the instant case be properly seen as a case of ‘lack of consent’, i.e in that neither party was consenting to be married by the ceremony concerned, with the result that what it effected in law was a voidable marriage under S 12(c)? Any such lack of consent was clearly not in consequence of “duress, mistake or unsoundness of mind” under that sub-section, but it could come within the long-stop words “or otherwise”. However I regard those statutory states of mind (duress, mistake and unsoundness of mind) as being states of mind removing from one or other party the ability to decide whether or not to enter into the status of marriage and it seems to me that the words “or otherwise” should be read in that light. More importantly, a positive intention not to enter into the status of marriage at the ceremony in question (at least when it was the intention of both parties and of the officiating minister) is different in specie from saying that they were both “not consenting”, since the concept of fundamental intention must be over-reaching in both nature and effect. The short point (to repeat it) is that none of the 3 main participants, and critically the official having the religious and secular authority to celebrate marriage, intended the ceremony to be one giving rise to a lawful marriage. They were indeed, with the very best of intentions, “play acting”. It is in this context that it is worth referring back to Ex parte Dow (above) where, on waiving the relevant deficiency of form, Broome J was careful to point out that there were no other legal impediments to the marriage, particularly in that, significantly: “…all concerned bona fide intended and believed it to be a valid marriage” (emphasis added), which clearly cannot be said of the ceremony here.

In conclusion, I am persuaded that the positive intention of all three key participants not to perform or effect a marriage, takes this case outside the intended scope of S12 (c) of the Act and that, overall, it is neither required by statute nor an apposite remedy to go down the route of annulment. So I am free to hold, as I do, that the ceremony in Cape Town on 23.1.04 did not effect a marriage between Miss Hudson and Mr Leigh.

I am unconvinced that there is or can be any satisfactory definition to cover this sort of situation, for convenience described in shorthand as a ‘non-marriage’ or a ‘non-existent marriage’. Various formulations have been mentioned en route to decisions reached on a case specific-basis, for example: (a) whether a given ceremony would ‘… prima facie confer the status of husband and wife on the two persons’ (R v Bham); or (b) whether it ‘bore the appearances and hallmarks of a marriage and was assumed by the guests to be an ordinary Christian marriage’ (Gereis v Yagob); or (c) whether it ‘… purported to be a marriage according to the Marriage Act’ (A-M); and / or (d) whether it was ‘… deliberately conducted outside the Marriage Acts and never intended or believed to create any recognisable marriage’ (A-M again).

Having regard to the wide range of potential factual situations, there would be difficulties with any of these possible formulations, if they were regarded (as they were clearly not intended to be) as attempts to state definitively the circumstances when something which looks like a marriage should fail in law to be one. Reliance on the ‘hallmarks of marriage’ alone may not in all circumstances be a satisfactory test, as it would not in fact be here. The ascertainment of intentions and beliefs will often be difficult and unreliable and their use alone could run into the problem of different participants in or at the ceremony intending and believing different things, as occurred here amongst the guests, although not as between the three main participants. Reliance, as per Mr Le Gryce’s suggestion, on the assumed perception of “the reasonable guest” is problematic, since it involves a fiction and begs many of the same questions as the “hallmarks” test. Mr Mostyn’s proffered definition, although a valiant effort, appears to be built specifically around the facts of this case and may fail adequately to deal with future circumstances as yet unforeseen.

In the result, it is not in my view either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (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. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.

In view of my finding that the Cape Town ceremony did not create a marriage, there is no marital status to be dealt with by way of a decree of any kind and so both limbs of Miss Hudson’s petition must be dismissed.

As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23^rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone.

There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all. As I have said, Mr Le Gryce contests jurisdiction, relying on S58 (5) itself and further on the fact that the ecclesiastical courts have not been shown ever to have exercised any such jurisdiction prior to 1857.

It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties.

In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19^th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction.

Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh. This will mean, unhappily for her, that she has no right to apply for financial relief for herself, but it will not of course affect her right to apply for it under Schedule 1 of the Children Act 1989 in respect of the parties’ daughter, should this be necessary.