The evolving concept of ‘non-marriage’ Rebecca Probert Some years ago, the local amateur dramatic society put on a production of J. B. Priestley’s When We Are Married. One enthusiastic actor had an unfortunate tendency to anticipate his cues, jumping in with ‘Does that mean we’re not married? ’ several pages too early. The rest of the cast grimly readjusted their lines, and the show carried on – to the bafflement of most of the audience, unable to detect in the events before them anything that might cast doubt on the marriages in question.
Only ten minutes short tonight! ’, said the producer as we filed out. A play, of course, can be cut, relocated and recast while remaining recognisable (if not always comprehensible). But is the same true of a wedding? What are the minimum requirements in order for a ceremony to have recognition as creating a legal marriage? When, in short, are we married? The question has acquired some urgency in the wake of a spate of recent cases in which the courts have debated the concept of the ‘non-marriage’.
As a number of judges have noted, the conceptual distinction between a marriage that is void, and one that is non-existent, is difficult to fathom. In practical terms, though, the difference is stark: when declaring a marriage void under the Matrimonial Causes Act 1973 the courts have the same powers to make financial orders as when granting a divorce, but when holding a union to be a ‘non-marriage’ they have no such powers and the legal rights of the parties are the same as if they had never gone through a ceremony at all.
As result, holding a union to be a non-marriage is not a decision that should be taken lightly. In recent years, however, the courts have been more willing to resort to this option. Four of the cases that resulted in non-marriages involved Islamic ceremonies of marriage: one that took place in the Moroccan consulate, a second in a hotel, and two more whose very existence was disputed but which were decided on the basis that some ceremony had taken place in a private flat.
A fifth non-marriage was the result of a civil ceremony that was actually the second ceremony of marriage that particular couple had gone through. The concept of a ‘non-marriage’ has also been extended beyond its original context of cases where the bride and groom had innocently failed to comply with the formalities to deal with certain types of forced marriages, unions where one party lacks capacity, and indeed any marriage that the courts feel should not be recognised for policy reasons. The concept is thus evolving in a number of different directions.
If any area of the law should be simple and certain, it is that governing entry into marriage. At present this is far from being the case. As the Law Commission commented over almost forty years ago, “the law is not understood by members of the public or even by all those who have to administer it. ” This is borne out by those recent cases in which the relevant authorities were either unaware of, or failed to alert the couple to, the relevant legal requirements. In addition, an undesirable level of judicial discretion operates at the boundary between marriage and non-marriage.
Rather than laying down clear guidelines, the courts have preferred a case-by-case approach taking into account a range of factors and evaluating the intentions of the parties as well as the nature of the ceremony undertaken. But the fact that the ‘non-marriage’ is – as explained below – a judicial creation does not mean that its scope cannot be delimited by the terms of the legislation governing marriage. The terms of the Marriage Act 1949 in fact offer a way forward that does not depend on making a discretionary judgment about the nature of the ceremony.
After explaining how and why the concept of ‘non-marriage’ evolved, and how the courts have tried to define the boundary between it and a marriage that is either valid or void, the neglected words of the statute and its logical implications for different situations will be analysed. It will be shown that within the terms of the statute a marriage may be valid if the parties either comply with the preliminaries or marry in a place that is registered for marriage, as long as their failure to comply with the other requirements was unwitting. It ill also be argued that giving determinative weight to the intentions of the parties – whether positive or negative – is highly problematic, and that the form of the ceremony should be the only guide as to its legal standing. I: How and why the concept of ‘non-marriage’ has evolved The law in this complex area is governed by the Marriage Act 1949, itself a consolidation of a whole series of nineteenth-century statutes. These earlier statutes were in turn shaped by the phrasing of the legislation of a still earlier generation, and it is impossible to understand the current law without an understanding of how and why the law evolved as it has.
Ever since the canon law of marriage was put on a statutory basis in 1753, it has been explicitly provided that certain failures to comply with the law render a marriage void, and equally explicitly provided that others cannot be relied on to invalidate a marriage. There has, however, always been a third category of cases where the effect of a failure to comply with the law has not been specified, and where it has been assumed that the marriage would still be valid regardless of non-compliance.
These include, for example, the registration of the marriage, and the requirement of witnesses. Since 1823 it has been the case that only a ‘knowing and wilful’ failure to comply with specified formalities will render the marriage void. The phrasing of the legislation reflected not only the desire to ensure that individuals could not use minor loop-holes in the law to escape from their marriage at a later date but also the assumption that everyone would know, at least in broad terms, what was required for a marriage.
At a time when the only permitted mode of marriage was one according to Anglican rites – with exceptions for Jews, Quakers, and members of the royal family – this was a reasonable assumption. This phrasing was extended from Anglican ceremonies to the civil and other religious ceremonies introduced by the Marriage Act 1836, and retained when the law was consolidated in 1949. The categories of valid and void were thought to be all that were needed. But today’s society is much more religiously, culturally and linguistically iverse than it was in 1836, or even in 1949, and as a result there is much more scope for genuine misunderstandings as to what is necessary for a valid marriage. What, then, is the position if the bride and groom innocently fail to comply with any of the necessary formalities because they do not even realise that such formal requirements exist? Such a marriage cannot be void: after all, even if a case could be made that the couple would at least have known that they had not complied with any formalities, the addition of the word ‘wilfully’ clinches the matter.
The marriage could only be void if the parties deliberately chose not to comply with the required formalities, which presupposes that they realised that they should have done so. It would, however, be odd if a ceremony that bore no resemblance at all to the form prescribed by the Marriage Act were held to create a valid marriage simply because it was not possible to declare that it was void. The courts have therefore gradually accepted that there must be a further category, not mentioned in the legislation, of a ‘non-marriage’.
The concept can be traced from the decision in R v Bham that the Act would not have any relevance when ‘a ceremony… is not and does not purport to be a marriage of the kind allowed by English domestic law’, through the decision in A-M v A-M that the court had no jurisdiction to grant a decree of nullity in relation to an Islamic ceremony in a private house, to the explicit decision in Gandhi v Patel that a Hindu ceremony performed in a restaurant was only a non-marriage. Even then, the very existence of the concept was seen to need further consideration and justification several years later in Hudson v Leigh.
Having reviewed the authorities and the existing literature, Bodey J declared that: ‘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 legal status; i. e. to find in convenient shorthand that it is a “non-marriage” or a “non-existent marriage”. ’ By the time that MA v JA came to be decided Moylan J felt able to refer to he ‘well-established line of authority’ that certain ceremonies would not suffice even to create a void marriage. But to accept the existence of the concept is one thing. The far more difficult question is where the boundary lies between a non-existent marriage and one that is either valid or void. II: How is the boundary between a valid marriage and a ‘non-marriage’ tested? In the earlier cases a variety of different approaches were taken to the dividing line between a ceremony that created a valid marriage and one that gave rise to no marriage at all.
In Gereis v Yagoub reliance was placed on the fact that the ceremony ‘gave all the appearance of and had the hallmarks of a marriage’ while in A-M v A-M it was the fact that the wedding ‘in no sense purported to be effected according to the Marriage Acts, which provide for the only way of marrying in England’ that would have rendered the ceremony in question a non-marriage. In Hudson v Leigh, Bodey J drew on these earlier authorities to suggest a list of four factors to be taken into account when deciding whether any given ceremony should be classified as a non-marriage: Questionable ceremonies should… be addressed on a case by case basis, taking account of the various factors and features… 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. While welcomed by some commentators as clarifying the concept of a non-marriage, the idea that the validity or otherwise of a marriage should be tested by applying all four simultaneously is problematic. The fundamental question has always been whether priority should be given to the intention of the parties or to the form of the ceremony.
All four of these factors simply reflect different aspects of either intention or form, with the reasonable perceptions of those attending being closely linked to whether the ceremony purported to be a marriage and the ‘hallmarks’ of marriage involving elements of both intention and appearance, according to how they are interpreted in different cases. How much weight should be given to intention, and how much to the form of the marriage, is not set out. In addition, Bodey J himself seemed a little dubious about the utility of some of his listed factors.
He acknowledged, for example, that ‘[r]eliance on the “hallmarks of marriage” alone may not in all circumstances be a satisfactory test. ’ Phased in this way, indeed, it is almost meaningless as a test: what, after all, are the ‘hallmarks’ of a marriage? Coleridge J referred in Burns v Burns to the ‘hallmarks of a wedding reception’, these being ‘the photographer, the marquee and the disco’. Yet these are rather the hallmarks of a lavish celebration, and many more modest weddings (mine included) eschew all three.
By contrast, when the judge in Gereis v Yagoub referred to the ceremony having the hallmarks of a Christian marriage he was alluding to the fact that the bride and groom had not lived together before the ceremony and regarded it as the start of their life together. Given that those marrying in the Church of England and other Christian denominations are rather more likely to have lived together before marriage than those marrying according to the rites of other religious groups, one can see why Bodey J dispensed with the adjective.
But he would have done better to have dispensed with the concept altogether: while the fact that the couple only begin to live together after going through a ceremony of marriage may cast light on their belief in the efficacy of the ceremony, this does not really get us very far. At best it indicates that they believed the ceremony to make them husband and wife in the eyes of the law, which side-steps the question as to how well-founded this belief was.
And it may, of course, simply indicate that they regarded the religious ceremony as sufficient to legitimate their subsequent relationship, regardless of its legal standing. For those with strong religious convictions, a ceremony that that is valid in the eyes of their god is more important in this sense than one that is legally valid. So this is hardly a helpful test when trying to decide on the legal standing of a ceremony.
Bodey J also seemed to undermine reliance on both (c) and (d) of his list when pointing out that ‘…[t]he 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. ’ Indeed, the problem of a clash between the intentions of the three key participants and the beliefs of those in attendance arose in Hudson v Leigh itself.
Bodey J noted that ‘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. ’ Nonetheless, he went on to hold that ‘[a]lthough 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 [i. e.
Miss Hudson, Mr Leigh, and the celebrant] fundamentally meant not to be effective, into a marriage in law. ’ So by this reasoning the intention of the parties will trump the reasonable perceptions of those present – at least where it is an intention not to be bound by the ceremony. But what about the more fundamental conflict between the intention of the parties and the form of the ceremony? It is one thing to hold that a ceremony gives rise only to a non-marriage where the parties know that it is not a proper ceremony. But what if the ceremony was otherwise celebrated as it should be?
This was put to the test in Galloway v Goldstein, which can be seen in one respect as the converse of Hudson v Leigh. Miss Hudson and Mr Leigh had not intended to be married by the religious ceremony that took place in South Africa because they were planning to marry in a civil ceremony in England; Mr Galloway and Ms Goldstein, by contrast, were not intending to be married by the civil ceremony that they went through in England because they were already married to each other, having gone through an earlier legally binding ceremony in Connecticut.
As Mostyn J tartly observed, it would have been far better had they simply arranged an informal ceremony in order to celebrate the fact of their marriage with friends and family in England. The implications of Galloway v Goldstein are, however, even more far-reaching that those of Hudson v Leigh: even setting aside the question of intention, the ceremony in that case would not have created a valid marriage, but the parties in Galloway v Goldstein had done everything necessary for a valid marriage, and it was only their lack of intention to be married that rendered the ceremony a non-marriage.
The converse, however, does not apply, as an intention to marry can be trumped in turn by the fact that the ceremony does not purport to be a marriage, factor (b) in Bodey J’s original list. In his later judgment in El Gamal v Al Maktoum Bodey J made this clear: ‘It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nevertheless suffices if the participants hopefully intended, or believed, that the ceremony would create one. ’
Dukali v Lamrani confirms that form has been prioritised over intention. The couple in that case made no attempt to comply with the requirements of English law because they had assumed that marriages at the Moroccan consulate were governed by Moroccan law, an assumption shared by their families, the notary who conducted the ceremony, the authorities at the consulate and indeed many other couples who had married there. The union also bore the hallmarks of a marriage in the same sense as the ceremony in Gereis v Yagoub, in that, as the husband put it, it was only after the ceremony that their lives ‘truly started together. Nonetheless, Holman J held that it did not purport to be a marriage under the 1949 Act on account of the ‘manifold non-compliance with every requirement of the Marriage Acts’, and it is difficult to disagree with the conclusion that the ceremony in that case could not be held to give rise to a valid marriage. So a positive intention to marry cannot convert a ceremony that does not comply with the Marriage Act into a marriage recognised by the law, but a lack of intention to marry has been held to undo otherwise valid ceremonies in certain circumstances. While this adds a measure of clarity, both approaches are in need of further refinement.
As regards the first, what has been lacking is any real engagement with the terms of the legislation. The next section will demonstrate that discretionary evaluations of the degree of compliance are not in fact necessary: cases of total non-compliance will inevitably be classed as non-marriages, while the consequences of all cases of partial non-compliance can be worked out from the statute. There then arises the further question as to whether intention is needed to play a secondary and negative role in turning otherwise valid ceremonies into non-marriages.
III: Which parts of the process are essential to the creation of a marriage? In MA v JA Moylan J gave careful consideration to the relationship between the statutory requirements and the concept of non-marriage: ‘if the failures expressly covered by the 1949 Act have the consequence stipulated, it is difficult to see how they can also cause a ceremony to create a “non-marriage”. This could certainly not be the consequence of those failures which the 1949 Act expressly provides will not affect the validity of the marriage.
It is also difficult to see how this could be the consequence of a failure to comply with those requirements which the Act expressly provides will result in a void marriage. ’ The first point is clearly correct. The 1949 Act prevents a marriage from being invalidated on account of parental consent not having been given to the marriage of a sixteen- or seventeen-year-old, or on the basis that the parties were not resident where they had claimed to be, or because the place where they married had not in fact been certified as a place of religious worship.
The second part of Moylan J’s argument perhaps needs to be read with care and limited to the context of the case. It is perfectly reasonable to argue that if an Act of Parliament states that a marriage will only be void if the parties knowingly and wilfully fail to comply with a particular requirement, then an innocent failure to comply with that requirement should not render the marriage void.
And on the facts of MA v JA itself, where the parties married in a mosque that had been registered for marriage, in the presence of an authorised person, unaware that anything else was needed and in the belief that the ceremony created a valid marriage in the eyes of English law, it would indeed have been harsh to have held that an innocent failure to comply with the preliminaries turned the union into a non-marriage, when a deliberate failure to comply would only have rendered it void.
Indeed, MA v JA can be seen as simply deciding a point left open in the Victorian case of Greaves v Greaves, as to whether the parties needed to know that certain requirements were necessary for a marriage, as well as knowing that they had not met those requirements. But it is one thing to hold that a marriage is valid where the parties have innocently failed to comply with one requirement. It would be quite another to uphold a ceremony that fails to comply with any of the requirements under the Marriage Act.
The requirements that the Act expressly provides will result in a void marriage if knowingly and wilfully flouted include not only the preliminaries but also the place of marriage and the status of the celebrant or person responsible for registering the marriage. Remove all these elements from the ceremony, and all that is left is a bare exchange of consent. Nor indeed does it seem that Moylan J would endorse the idea that all formalities could be removed from the process.
He quoted the words of Ormrod J to the effect that ‘the formal exchange of voluntary consents to take one another for husband and wife’ is the ‘essence’ of marriage, but suggested that this would be too wide a test to determine the boundary between the valid/void marriage and the non-marriage, on the basis that ‘it could result in almost any form of ceremony being sufficient, wherever and however conducted. ’ So something more must be needed.
The question is, how much more? Moylan J suggested that assistance might be gained from looking at the case-law on the presumption in favour of marriage – not to presume a marriage but in order to discover what is essential to a marriage. From this case-law he deduced that the place of marriage and the authority of the celebrant were the key points. The problem with relying on these cases for this purpose is that the evidence given to raise the resumption tends to be what has survived and is readily discoverable, rather than what is essential to the existence of the marriage. Rather than relying on the case-law on what is a different, if related issue, it would be better to focus more closely on the terms of the statute. By isolating different elements of the ceremony, it is possible to be precise about when a ceremony can be recognised as a marriage. (i) The significance of the place of celebration
It is convenient to begin with the place of celebration, since, in all of the case-law on this topic to date, no wedding that has been celebrated in a place of worship registered for marriage has ever resulted in a non-marriage, and no wedding celebrated outside such a place has ever resulted in a valid marriage. To marry in a place that has been registered for marriage can be accepted as a marriage within the framework of the 1949 Act. If the parties did so having knowingly and wilfully failed to comply with the specified preliminaries, the marriage will be void.
Similarly, if they knowingly and wilfully marry without either a registrar or authorised person being present, the marriage would also be void. If, however, they innocently fail to comply with either or indeed both of these requirements, the marriage will be valid. So the fact that they marry in a place that has been registered for marriage would be sufficient to create a valid marriage. It would not, however, be necessary. The 1949 Act precludes evidence being given in subsequent proceedings that the place where the marriage took place had not in fact been certified as a place of religious worship.
While this is not the same as saying that a marriage cannot be invalidated where the building in which the ceremony took place was not registered for marriage – certification and registration are two distinct processes – it remains the case that nowhere in the Act is it stated explicitly that a marriage will be void if it was celebrated in a place that had not in fact been registered for marriage. The fact that it would not be void does not, of course, mean that it must therefore be valid. If the place was not registered for marriage, what else might suffice to create a valid marriage? ii) The significance of giving notice Of all the requirements whose lack might render a marriage void, that of giving notice is the most likely to be ignored, on account of the fact that it is the least visible of the three. While couples intending to marry may well have attended other ceremonies, they are unlikely to have been involved in the process of giving notice. The parties in MA v JA, for example, were aware that they could marry in a mosque, but not of the civil preliminaries that the statute lays down as the necessary precursor to any such ceremony.
Matters are also complicated by the fact that under the Act the place of celebration is identified as part of the process of giving notice. It is expressly stated that if the parties ‘knowingly and wilfully’ marry ‘in any place other than the church, chapel, registered building, office or other place specified in the notice of marriage and certificate of the superintendent registrar’, the marriage will be void. So, if the parties have given notice as required by the 1949 Act, and have then deliberately married in a place other than that specified, the marriage will be void regardless of whether the venue was registered for marriage.
If, however, at least one of the parties did not realise that they had to marry in the place specified in the notice of marriage – a distinct possibility for those with limited English, or where one of them did not see the notice – then it would follow that the marriage should be valid even if the place where they married was not registered for marriage. This does not, of course, allow couples simply to give notice and marry wherever they please, since, as noted above, a deliberate flouting of the law will render it void.
What if the parties marry in the place specified in the notice but are aware that the building in question was not actually registered for marriage at all? This is perhaps a remote possibility, since it presumes a lack of attention on the part of the registrar who granted the certificate for the marriage to go ahead. Since it is a basic principle that a court will not hold a marriage to be void unless it has clear statutory authorisation to do so, and this possibility was not contemplated by the legislature, the marriage should not be deemed to be void.
The alternative of it being a non-marriage would be inappropriate given the fact of there being at least some engagement with the legal requirements. (iii) The significance of the celebrant’s status So far it has been argued that the category of non-marriage should be reserved for those marriages that fail to comply with any aspect of the Marriage Act, with those that comply with at least one element – whether by giving notice to the relevant authorities or marrying in a place that has been registered for marriage – being dealt with under the terms of the Marriage Act itself.
Does this reasoning extend to the situation where neither of these elements were observed but where the person who celebrated the marriage was authorised to do so? The problem here is that the role of the celebrant differs between different types of ceremony. In the case of those marrying according to Anglican rites, the marriage is void if the parties ‘knowingly and wilfully consent to or acquiesce in the solemnisation of the marriage by any person who is not in Holy Orders. ’ There is, however, no exact equivalent for those conducted according to other religious rites, or for civil marriages.
As Stephen Cretney has explained, when the Marriage Act 1836 allowed individuals to marry according to non-Anglican rites, Nonconformist ministers and Catholics priests were not entrusted with the registration of marriages, since they ‘did not have the legal status attaching to incumbents of the Established Church, and it was said that there were a great many ministers, and men who frequently “for a time became the minister of a Dissenting congregation, and afterwards laid down his charge. ’ The status of the non-Anglican celebrant was side-stepped by making the presence of a Registrar necessary. Further legislation in 1898 permitted the governing body of a registered building to authorise a person to be present at the solemnization of a marriage in that registered building and to take responsibility for the registration of the marriage; such a person was, however, a replacement for the Registrar rather than a religious celebrant.
These provisions having been consolidated in the Marriage Act 1949, it is now provided that a civil marriage will be void if it is knowingly and wilfully celebrated in the absence of the registrar, while ‘in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person)’, if the parties knowingly and wilfully marry ‘in the absence of a registrar of the registration district in which the registered building is situated’, the marriage will be void.
The last of these does not make it entirely clear what the consequences would be if the parties knew that the person purporting to be an authorised person was not in fact authorised to act: however, since this would not be a marriage in the presence of an authorised person, it would presumably be void on the basis that the parties had knowingly and wilfully married in the absence of the registrar (unless one happened to be present in addition to the supposed authorised person).
Similarly, in the case of a civil marriage, if the parties were privy to information establishing that the purported registrar was not authorised to act as such, it would be void on the basis that they had knowingly and wilfully married in the absence of a registrar. So the fact that there is no authorised person at the wedding may in certain circumstances render the marriage void. But could the fact that someone at the wedding was an authorised person render it a valid marriage in and of itself? The statute suggests that the answer to this must be ‘no’.
Their role is not equivalent to that of the clergyman within the Anglican wedding. Authorised persons have a very limited authority: their role is to replace the civil registrar and be present at the solemnization of marriages in a registered building. They do not necessarily conduct the ceremony. Their authority is also limited to the registration of marriages in registered buildings within their own registration district. All this suggests that the fact that he or she happens to be authorised to register marriages under the Act is incidental if the ceremony takes place outside a registered building, nd cannot render it valid. To sum up: it would follow from the structure of the Act that giving notice may, in certain circumstances, be sufficient by itself to create a valid marriage, and that marrying in registered premises will usually be sufficient to do so (assuming that the failure to comply with the other requirements was unwitting) but that the presence of an authorised person will not, by itself, suffice. This is, it should be stressed, a working out of the logical consequences of the statute rather than an argument that this is what the law should be.
To the extent that there is a degree of arbitrariness – couples may choose to marry in their local place of worship without checking whether it is registered for marriage, and whether it is or not might be a matter of luck – it is dictated by the current unsatisfactory state of the law. It would, of course, be preferable if Parliament were to revise the 1949 Act and provide a more coherent set of rules as when a marriage would be valid, and when void, but in default of such legislation the approach outlined here would at least provide a measure of certainty.
The same cannot, however, be said for the role currently accorded to the intentions of the parties. IV: The role of negative intentions If a couple innocently fail to comply with any of the requirements laid down by the Marriage Act, then the result is a non-marriage. But what if they knowingly fail to observe the required formalities? The outcome must, as a matter of logic, be the same: if a marriage is celebrated outside the framework of the Act, then the statutory test as to the parties’ knowledge and belief cannot have any role to play.
The only case to the contrary is the early one of Gereis v Yagoub, in which the parties had failed to give notice and went through a ceremony of marriage in a place that was not registered for marriage, before a priest who was not authorised to conduct the ceremony. The fact that the latter told the couple that the ceremony would not create a valid marriage allowed Judge Aglionby to hold that the marriage was void on the basis that the parties had knowingly and wilfully flouted the law.
Whether he would have held it to be valid if they had innocently failed to comply is more doubtful. In any case, there has been little enthusiasm for the decision in later cases. One judge referred to it as ‘merciful’, another doubted whether it could be squared with the reasoning of the Court of Criminal Appeal in R v Bham, and when the issue came before the Court of Appeal again Robert Walker LJ preferred ‘to express no view on it. ’ Were a similar case to come before the courts today, it is unlikely that it would be followed.
But should a lack of intention to marry negate a marriage coming into existence if the ceremony did comply with the law? As noted above, in Hudson v Leigh Bodey J expressed the view that this could be the case, and in the later case of El Gamal v Al Maktoum, he reiterated the view that the question of intention would be ‘particularly relevant’ if the parties either did not intend to create a valid marriage, or knew that the ceremony in which they were participating would not do so. Yet whose intention is relevant for this purpose?
Despite Bodey J’s implied suggestion in Hudson v Leigh that the intention of the person officiating at the ceremony might be even more important than that of the parties themselves, the fact that a religious celebrant thought that he ‘was “only” conducting a religious ceremony’ did not have the effect of reducing that ceremony to a non-marriage in MA v JA and the Attorney General. Nor, indeed, did the assumption of the Registrar in Galloway v Goldstein that he was officiating at a valid marriage affect the result.
So it would seem that the courts have taken the view that the intention or belief of the celebrant is not determinative by itself it if is not shared by the parties. This raises the further question as to what the outcome should be where one of the parties believed the ceremony to be a valid marriage and the other did not. Assuming that the ceremony is one that is capable of giving rise to a valid marriage, the fact that only one of the parties believes or intends this not to be the case should not result in it being declared a non-marriage. Where that lack of intention was caused by a mistake (or lternatively duress or inability to consent), the marriage would in any case be voidable. It would be highly problematic if, outside these specific cases, one party could later wipe out a marriage on the basis that he or she never intended to get married: English law has always been averse to the idea of private reservations affecting the validity of a marriage. Indeed, once one starts to unpick the role of intention in such cases the more problematic it appears. So we might want to ask whether intention – or rather lack of intention – should have this powerful negative role.
The case of Hudson v Leigh could have been dealt with simply on the basis that it did not purport to be a marriage under South African law, while in Galloway v Goldstein the obvious solution would have been to recognise the Connecticut divorce, rather than to refuse to recognise the English marriage. One might also speculate as to what the outcome would have been had there been any flaw in the initial Connecticut marriage: if that marriage had turned out to be void on the basis of non-compliance with certain essential formalities, it is unlikely that an English court would still have refused to recognise the validity of the English marriage.
In addition, as a matter of policy, it is undesirable that a couple should be able to simply state say that they never intended to enter into a marriage after they have made formal declarations to the contrary. The better view, then, is that it is not necessary for intention to play either a positive or a negative role. This, however, leads us on to a further and more controversial use of the concept of non-marriage. As has been recognised, the need for a category of non-marriage in cases of non-compliance with the formalities is dictated by a gap in the relevant legislation.
Is it appropriate, then, to use the concept to negate marriages that are covered by statute but which the courts feel should not be recognised for policy reasons? Under the Matrimonial Causes Act 1973, if an annulment is sought on the basis of lack of consent it is an absolute bar that proceedings were not instituted within three years of the marriage. In recent years there have been a number of cases in which individuals who were forced into a marriage against their will have only come forward some time later. The courts have addressed this by effectively side-stepping the tatutory time limits and granting declarations that there had never been a marriage capable of recognition within the jurisdiction. Such a remedy—which effectively reduces the union to a non-marriage—has been described as “far more appropriate and just” than the alternative of declaring the marriage to be voidable. This reflects the perception that consent is so fundamental to marriage that its lack should have a more significant impact than simply rendering the marriage voidable. But the logic of this has not been developed further.
If consent is so fundamental to a marriage that its lack wipes out the very existence of the marriage, then this is the case from day one of the marriage. It is conceptually bizarre that a forced marriage is voidable within the first three years of the marriage (with the concomitant ability to access the financial remedies of the 1973 Act if necessary) but a non-marriage thereafter. A solution that seems convenient at one point may come to seem extremely unjust at another, and the importance of providing a remedy in such cases should not preclude debate as to whether the convenient solution is the appropriate solution.
To suggest that the time-limit should not be side-stepped in this way is not to argue that the policy reasons behind the restriction are sound. When the Law Commission proposed such a limit back in 1970 – as part of its recommendation that a marriage entered into as a result of duress should be voidable rather than void – it took the view that ‘[a] party to such a marriage should decide as soon as possible whether to avoid it or accept it as a valid marriage, and three years is more than sufficient in which to make such a decision. In the forty or so years that have elapsed since then, research into forced marriages has revealed the multitude of reasons why an individual might not come forward. Rather than distorting the concept of non-marriage to encompass these cases, a preferable solution would be to revert to the proposal of the Morton Commission that there should be a power to extend the time limit. This would allow the courts to make a judgment as to whether the circumstances did prevent the claimant from coming forward before. Another option would simply be to do away with any time limit whatsoever.
A second type of case in which the concept of non-marriage appears to have been used is where one of the parties to it lacked capacity to enter into it, and so was unable to form the intention to marry. In recent years the courts have been increasingly willing to grant injunctions to prevent intended or potential marriages from going ahead where one party clearly lacks capacity. Where the marriage has already taken place, the legislation envisages that the usual course would be an application for the marriage to be annulled, it being merely voidable unless and until a decree is granted.
In City of Westminster v IC the local authority’s intention to apply for an injunction was circumvented by the marriage taking place over the telephone. Upon the application of the local authority, the Court of Appeal simply held that the marriage was not one that was entitled to recognition by English law. While the term ‘non-marriage’ was not used in the judgments delivered by either Thorpe LJ or Wall LJ, the later case of XCC v AA & Anor seemed to regard the declaration of non-recognition granted in Westminster as being effectively the same as that granted in B v I.
The policy issues here are a little different. There are many precedents for invoking public policy to refuse recognition to a marriage celebrated overseas, and these do not require English law to categorise the resulting union as either voidable, void or a non-marriage. The concept of non-marriage would only be needed if the marriage took place in this country, and the court in Westminster seemed confident that any attempt to go through a ceremony of marriage in this jurisdiction would have failed.
As Wall LJ noted: ‘No English Registrar of marriages could or would have contemplated celebrating a marriage between IC and NK, for the simple reason (amongst others) that no such Registrar could have issued a certificate of satisfaction that there was no lawful impediment to the marriage. ’ If such a marriage did take place, perhaps where the capacity of the individual in question was borderline, a decree of nullity could be obtained by a third party. The Law Commission noted the possibility of the incapable arty’s ‘next friend’ instituting proceedings provided ‘a safeguard in the event of its being in the interest of the insane [sic] person to obtain a decree of nullity’. In XCC v AA & Anor Parker J held that the Court of Protection could make a decision that it would be in an individual’s best interests for nullity proceedings to be instituted and to authorise the Official Solicitor to act as the next friend of the individual lacking capacity to commence such proceedings on their behalf. There is thus no need to bring such cases within the scope of the concept of ‘non-marriage’. V: A role for positive intentions?
Some disquiet has been expressed as to the potential injustice that the current law may cause. Lowe and Douglas, for example, suggest that: ‘some regard should be paid to the parties’ belief that they were contracting a legally valid marriage: only if both knew that the ceremony could not make them husband and wife by English law should they be in the same position as a couple who cohabit without going through any ceremony at all. ’ Yet it is difficult to see how ‘some’ regard can be had to intention within the current framework: if the ceremony is not to be relegated to the status of a non-marriage, then it must be valid.
The force of the distinction between those who have gone through a ceremony and those who have not is also blunted somewhat by the fact that many of those who have not still believe that they have the same rights as those who have, as a result of the persistent ‘common-law marriage myth. ’ The reluctance of the courts to place any weight on the intention of the parties themselves is justified as a matter of both historical precedent and present pragmatism.
While the consent of the parties has always been at the heart of marriage, in that its lack may lead to a marriage being annulled, mere intention by itself has never been sufficient to create a marriage. Even before the Clandestine Marriages Act of 1753 put marriage on a statutory basis, more was required for a legally recognized marriage than a simple exchange of consent: vows had to be exchanged before an Anglican clergyman in order for the parties to have the status of husband and wife. From a pragmatic point of view, the difficulties of placing weight on the intention of the parties alone are obvious.
After all, it will be rare for a case to come to court where the parties are in agreement about their intentions. If they have discovered some flaw in their ceremony and wish to remedy it, it would be simpler, quicker and cheaper to go through a new ceremony of marriage rather than to litigate over the status of the first. If they have separated, then at least one of them may wish to deny that there was ever any intention to marry. And if one has died then, despite sympathy for the survivor, claims based solely on intention should be regarded with caution.
And it is not, after all, a simple conflict between intention and form. Couples manifest their intention to enter into a legally binding marriage by going through a ceremony in a prescribed form. In El Gamal v Al Maktoum Bodey J refused to believe that the woman would have truly believed that the alleged ceremony would have created a marriage and noted the difference between a hope that it would be valid and ‘an intention to create a valid, recognised marriage with a genuine belief that the ceremony could and would do so. ’
Lest that be thought unduly harsh, it should be noted that the law does not regard intention to make a will as sufficient by itself, if the requisite formalities are not observed, whatever the consequences for the survivors. Similarly, when the law requires formalities to be observed for the creation of certain types of contracts, the intentions of the parties do not suffice to create the same legal obligations. But the difficulty of attaching more weight to the intentions of the parties does not mean that reform is not desirable. Conclusion
The fact that the law as currently drafted makes the concept of a ‘non-marriage’ a necessity does not mean that it has any intrinsic merit. Revising the circumstances in which a marriage is void under the Marriage Act 1949 could potentially do away with the concept altogether, while extending the time-limits under the Matrimonial Causes Act 1973 would obviate the need for it to be used to assist those forced into marriages against their will. With these modest reforms, the concept of the non-marriage could be consigned to history as an evolutionary dead end.
As Moylan J noted in MA v JA: ‘[t]he status of marriage is an important status which carries with it a variety of rights and obligations under English law. It is in the interests of those wishing to marry in England both to know whether the ceremony they propose to undertake does or does not create a valid marriage under English law, with all the consequent rights and obligations, and subsequently to be able to prove that they have entered into a marriage recognised as valid under the law of England and Wales. ’ ——————————————– [ 1 ].
See e. g. B v I (Forced Marriage)  1 FLR 1721, . [ 2 ]. Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown, Law Com No. 307 (London: TSO, 2007), para. 2. 101. [ 3 ]. Dukali v Lamrani  EWHC 1748 (Fam). [ 4 ]. Sharbatly v Shagroon  EWCA Civ 1507. [ 5 ]. Al-Saedy v Musawi  EWHC 3293 (Fam); El Gamal v Al Maktoum  EWHC B27 (Fam). [ 6 ]. Galloway v Goldstein  EWHC 60 (Fam). [ 7 ]. B v I  1 FLR 1721; SH v NB (Marriage: Consent)  EWHC 3274 (Fam); Re P (Forced Marriage)  EWHC 3467 (Fam). 8 ]. See e. g. J v C (Void Marriage: Status of Children)  EWCA Civ 551 in which it was held that a femaletomale transsexual could not be said to be a party to a marriage with a female. The court accepted the argument that marriage was exclusively the union of one man and one woman and that therefore there could not be a marriage of any kind between two women, rather than applying the provision in s. 11(c) of the Matrimonial Causes Act 1973 which dictates that a marriage shall be void ‘if the parties are not respectively male and female’. [ 9 ].
Law Commission, Family Law: Report on Solemnisation of Marriage in England and Wales, Law Com. No. 53 (London: HMSO, 1973), Annex, para. 6. [ 10 ]. See e. g. MA v JA  EWHC 2219 (Fam), , . The Home Office has now instigated an ‘Authorised Persons Newsletter’ with information and guidance. [ 11 ]. See Hudson v Leigh  EWHC 1306 (Fam), and note also the comment of Hedley J in Sharbatly v Shagroon  EWCA Civ 1507, , to the effect that each case in this area ‘must continue to be decided on its own facts. ’ [ 12 ]. For a comprehensive discussion of the complex and slow process of reform see S.
Cretney, Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003), ch. 1. [ 13 ]. See R. Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge: Cambridge University Press, 2009), ch. 6. [ 14 ]. Wing v Taylor (1861) 164 E. R. 1002; 2 Sw & Tr 278, at p. 286. [ 15 ]. Under s. 22 of the Marriage Act 1823 a marriage would only be void if the parties knowingly and wilfully married in a place other than a church or chapel, or married without having the banns called or obtaining a licence, or knew that the person solemnizing the marriage was not in Holy Orders. 16 ]. The reform was sparked by concern that the invalidating clauses of the 1753 Act were being used as a substitute for divorce, with non-compliance with specific requirements being invoked twenty or thirty years after the marriage had taken place: see Probert, ibid, ch. 8. [ 17 ]. Such ceremonies might be void if they were knowingly and wilfully celebrated in any place other than that specified in the notice, or without the civil preliminaries being observed, or in the absence of a Registrar or Superintendent-Registrar: Marriage Act 1836, s. 42. 18 ]. See also J. Jackson, The Formation and Annulment of Marriage (London: Butterworths, 2nd ed 1969), p. 165, who notes that a failure to comply with formalities ‘will either not affect the validity of the marriage at all, or will render the marriage void. ’ [ 19 ]. R v Bham  1 QB 159, p. 168. [ 20 ]. A-M v A-M  2 FLR 6 [ 21 ]. Gandhi v Patel  1 FLR 603. For discussion of these early cases see R. Probert, ‘When are we married? Void, non-existent and presumed marriages’ (2002) 22 Legal Studies 398. [ 22 ]. Hudson v Leigh  EWHC 306 (Fam), . See also Leigh v Hudson  EWCA Civ 1442, in which Thorpe LJ dismissed an application for leave to appeal, implicitly endorsing the conceptual distinction between a void marriage and a non-marriage, and R. Gaffney-Rhys, ‘Hudson v Leigh – the concept of non-marriage’  CFLQ 351. [ 23 ]. MA v JA  EWHC 2219 (Fam), . See also Sharbatly v Shagroon  EWCA Civ 1507,  for acceptance of the concept. [ 24 ]. See e. g. G v M  EWHC 2651, . [ 25 ].  1 FLR 854, p. 858. [ 26 ]. A-M v A-M  2 FLR 6, p. 24. [ 27 ].
The point was rendered academic by the court deploying the presumption in favour of marriage to presume that a valid marriage had taken place at some other point in time. [ 28 ]. Hudson v Leigh  EWHC 1306 (Fam), . [ 29 ]. See e. g. R. Gaffney-Rhys, ‘Hudson v Leigh – the concept of non-marriage’  CFLQ 351; see also Dicey, Morris & Collins, The Conflict of Laws (London: Sweet & Maxwell, 15th ed. 2012, 17-006), which adopts these four factors. [ 30 ]. See further below. [ 31 ]. Hudson v Leigh,  [ 32 ]. Ibid,  [ 33 ]. Ibid, . [ 34 ]. [T]his ceremony … bore the hallmarks of an ordinary Christian marriage and … both parties treated it as such, at least to the extent that they cohabited after it, whereas they had not before, that they had sexual intercourse, which they had not before, and that the respondent had claimed married man’s tax allowance, which he had not before. ’:  1 FLR 854, p. 858. [ 35 ]. See e. g. Gereis v Yagoub, in ehihc [ 36 ]. This view can be seen in those cases where couples who have gone through a valid civil ceremony defer married life until after the performance of the religious ceremony: see e. . [ 37 ]. Hudson v Leigh  EWHC 1306 (Fam), para  [ 38 ]. At . [ 39 ]. At . [ 40 ]. See e. g. El Gamal v Al Maktoum  EWHC B27 (Fam), in which Bodey J noted that the question of intention would be ‘particularly relevant’ if the parties either did not intend to create a valid marriage, or knew that the ceremony in which they were participating would not do so. See also AAA v ASH  EWHC 636, in which both parties knew that the ceremony had no legal status under English law and the marriage was assumed to be a non-marriage. 41 ].  EWHC 60 (Fam). [ 42 ]. Mostyn J reasoned that they ‘must have known that the ceremony they were going through in England… did not confer on them the status of marriage because they were already married. ’ (at ). Indeed, the need to bring the case was just as redundant as the second marriage, since the marriage had already been dissolved in Connecticut, and the declaration was sought simply as a precaution. [ 43 ].  EWHC B27 (Fam), para ** (emphasis added).
See also MA v JA and the Attorney General  EWHC 2219 (Fam), , holding that ‘intention alone is unlikely to be sufficient to make a marriage potentially valid under English law’. [ 44 ].  EWHC 1748 (Fam), . [ 45 ]. See also Sharbatly v Shagroon  EWCA Civ 1507, in which it was noted that the right to apply for provision under the ** Act 1984 was dependent on there being a marriage ‘recognised as valid or void by the lex loci celebrationis’ (Thorpe LJ at ) and that the Islamic ceremony in a hotel ‘could never have achieved the status even of a void marriage in English law’ (Hedley J, at ). 46 ]. See C. Bevan, ‘The Role of Intention in Non-Marriage Cases Post Hudson v Leigh’ on the secondary role played by intention. [ 47 ].  EWHC 2219 (Fam),  [ 48 ]. Marriage Act 1949, s. 48, preventing evidence on any of these points being given. [ 49 ]. (1872) LR 2 P & D 423. [ 50 ].  EWHC 2219 (Fam), . This, however, perhaps overlooks the crucial word ‘formal’: the issue of course is just how formal the exchange of consents has to be. [ 51 ]. The role of the presumption in favour of arriage is to permit the law to presume that a marriage has taken place where the evidence as to the existence or nature of the ceremony is lacking, rather than to guide the courts in determining what aspects of the ceremony are essential to the marriage coming into being. [ 52 ]. See e. g. Gandhi v Patel  1 FLR 603; Al-Saedy v Musawi  EWHC 3293 (Fam); El Gamal v Al Maktoum  EWHC B27 (Fam); Dukali v Lamrani  EWHC 1748 (Fam); Sharbatly v Shagroon  EWCA Civ 1507.
In Gereis v Yagoub  1 FLR 854 the parties went through a ceremony in a Coptic Orthodox Christian Church which was not licensed for marriages: in this case the question of whether this might create a valid ceremony did not arise as the parties had been explicitly informed that they needed to go through a binding civil ceremony as well and the marriage was held to be void. In CAO v Bath  1 FLR 8, by contrast, the Court of Appeal decided that the evidence was insufficient to rebut the presumption that the place of worship was registered for marriage. [ 53 ]. Marriage Act 1949, s. 9(a), (b) and (d). [ 54 ]. Marriage Act 1949, s. 49(f), (g), (gg) and (h). [ 55 ]. Marriage Act 1949, s. 48. [ 56 ]. MA v JA, , noting that the petitioner ‘knew nothing about the need for notice or a certificate or any of the formal requirements of the 1949 Act and made no enquiries beyond his discussion with the Chairman of the Mosque. ’ [ 57 ]. The difference between the provision relating to Anglican marriages and this provision dates back to the 1836 Act (see above): while marriages could be celebrated in any Anglican church, no such liberty was given to nonconformists.
The difficulties of registering chapels have been debated (see O. Anderson, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1975) 69 Past and Present 50; R. Floud and P. Thane, ‘The Incidence of Civil Marriage in Victorian England and Wales’ (1979) 84 Past and Present 146; O. Anderson, ‘A Rejoinder’ (1979) 84 Past and Present 155) [ 58 ]. See e. g. Catterall v Sweetman (1845) 163 ER 1047. [ 59 ]. By contrast, if the couple marry in a civil ceremony, it is expressly provided under s. 9(ee) that a marriage purporting to be on approved premises will be void if the parties are aware that the premises were not in fact approved. [ 60 ]. This would also explain why the ceremony in Gereis v Yagoub escaped being relegated to a non-marriage, since there was at least some attempt to engage with the system: as the judge noted, the parties ‘went to Marylebone Registry Office for a civil ceremony. Unfortunately, it appears that either sufficient notice was not given or that no appointment had been properly booked, and the Registrar of Marriages declined to carry out a civil ceremony of marriage. ’ (p. 855). [ 61 ].
This may have been the case in A-M v A-M, where the ceremony was conducted by an Islamic Mufti from a mosque: however, the judgment gave no further evidence as to his status. [ 62 ]. Marriage Act 1949, s. 25. [ 63 ]. S. Cretney, Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003), p. 11. [ 64 ]. Marriage Act 1949, s. 49(g). [ 65 ]. Marriage Act 1949, s. 49(f). [ 66 ]. ‘The responsible authorised person does not need to be the minister or priest and may be anyone connected with the church’: Home Office Identity & Passport Service, A Guide for Authorised Persons (December 2011), para. . 13. [ 67 ]. Marriage Act 1949, ss. 43(1) and 53(e). [ 68 ]. The Act states that ‘the marriage may be solemnized in that building according to such form and ceremony as those persons may see fit to adopt’ (s. 44(1)), its only stipulation being that certain declarations should be exchange ‘in the presence of’ the authorised person. See also MA v JA, in which the imam who conducted the ceremony was not an authorised person, but such a person was present at the ceremony. [ 69 ]. Marriage Act 1949, s. 44(2)(b). [ 70 ].
See also R v Bham, in which a Muslim community leader who presided over an Islamic marriage ceremony in a private house escaped conviction under s. 75 of the Marriage Act on the basis that the ceremony in question was not capable of conferring on the parties the status of husband and wife. While the focus of that case was on the polygamous nature of the ceremony, the same reasoning would apply to the form of the marriage. [ 71 ]. ** [ 72 ]. Gandhi v Patel ,  [ 73 ]. Chief Administrative Officer v Bath  1 FLR 8 at 22. [ 74 ].  EWHC B27 (Fam). 75 ]. See also AAA v ASH  EWHC 636, in which both parties knew that the ceremony had no legal status under English law and the marriage was assumed to be a non-marriage. [ 76 ].  EWHC 2219 (Fam), , . [ 77 ]. Matrimonial Causes Act 1973, s. 12(c). [ 78 ]. See further the comment by Lord Merrivale P in Kelly v Kelly (1932) 49 TLR 99 to the effect that ‘it would be intolerable if the marriage law could be played with by people who thought fit to go to a Register Office and subsequently affirmed that they did not regard it as a marriage. [ 79 ]. The same time bar applies to applications based on venereal disease, pregnancy by a third party, or gender reassignment. There is a restricted power to extend this period in cases of mental illness: see s. 13(4). [ 80 ]. B v I  1 FLR 1721; SH v NB (Marriage: Consent)  EWHC 3274 (Fam); Re P. (Forced Marriage)  EWHC 3467 (Fam). [ 81 ]. It is also, it should be noted, distinct from granting a declaration that the marriage was void at its inception, an option barred by s. 55 of the Family Law Act 1986.
It was acknowledged in B v I  1 FLR 1721,  that the distinction between such a declaration and one declaring that a marriage never existed was “fine” and perhaps “not… wholly logical” but nonetheless fair in the circumstances. [ 82 ]. See e. g. Re P. (Forced Marriage)  EWHC 3467 (Fam), . [ 83 ]. Law Com No. 33 (1970), para. 85. [ 84 ]. The very factors that led to the individual’s will being overborne at the time of the marriage may well continue to operate long after the wedding has taken place: in B v I the girl had been unable to leave the family home. 85 ]. See eg M v B, A, and S (By her Litigation Friend the Official Solicitor)  EWHC 1681 (Fam) (23yearold woman who suffered from a severe learning disability: injunction granted to prevent her parents from taking her to Pakistan to be married); X City Council v MB, NB and MAB (By His Litigation Friend the Official Solicitor)  EWHC 168 (Fam),  2 FLR 968 (25-year-old autistic man: undertakings from parents that they would not cause or permit him to undergo any form of marriage ceremony or take him out of the jurisdiction). 86 ]. Matrimonial Causes Act 1973, s. 11. [ 87 ].  EWCA Civ 198. [ 88 ]. See e. g. Thorpe LJ at  and Wall LJ at . [ 89 ].  EWHC 2183 (COP). [ 90 ]. See the cases reviewed in J. Murphy, International dimensions in family law (Manchester University Press, 2005), ch 4. [ 91 ]. Westminster, at para . [ 92 ]. Law Commission, Family Law: Report on Nullity of Marriage, Law Com No 33 (HMSO, 1970), at para 14(e). [ 93 ]. 2012] EWHC 2183 (COP). [ 94 ]. See e. g. S. Harris-Short and J. Miles, Family Law: Text, Cases and Materials (Oxford University Press, 2nd ed 2011), pp. 76-77; J. Herring, Family Law (), p. 49. [ 95 ]. See e. g. [ 96 ]. An exception is MA v JA. For some, of course, the validity of the original marriage may be seen as important to legitimate their relationship in the eyes of the community, [ 97 ].  EWHC B27 (Fam). [ 98 ]. At . [ 99 ]. MA v JA, 
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