Valid Marriages

What is a Valid Marriage?

For a valid marriage to have taken place in England or Wales, in the eyes of the Courts of England and Wales, a marriage ceremony must take place in accordance with the requirements of the Marriage Act 1949 (as amended from time to time). The basic requirements of the Act are as follows:

  • You are prohibited from marrying certain classes of people (siblings, parents or children are obvious examples)
  • You have to be old enough to marry (at least 16)
  • You may need appropriate permissions if under the age of 21
  • The marriage has to take place between 8am and 6pm
  • The marriage must be pre-publicised, either by the pronouncement of banns for marriages in accordance with the rites of the Church of England or by publication of a notice
  • The ceremony must take place at an address holding a licence to perform wedding ceremonies
  • The marriage must take place in the presence of at least 2 witnesses

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Importance of Valid Marriages

Why is a Valid Marriage Important?

The question whether you have a valid marriage is important both to the rights in respect of any children of a relationship and also in relation to the finances. For example, if a father is not named on the birth certificate and the parents were not married then the father has no parental responsibility for the child without agreement or a Court Order and has no right to authorise medical treatment of the child. More often the validity of a marriage is challenged in divorce proceedings to prevent the Court having the power to divide the assets or when somebody dies and there are issues over who should inherit their estate (as well as whether the estate has to pay inheritance tax).

What if you were Married Abroad?

Where the marriage takes place abroad it is recognised in England and Wales, provided it complies with the requirements of the jurisdiction where the marriage took place (i.e. formally valid), even if it would not have complied with the law of England and Wales. It must have been celebrated in accordance with the requirements of the law of the country where it took place or (as an alternative) in accordance with the requirements of English law. Where the validity of a marriage is questioned evidence may be required of the requirements of the jurisdiction where the marriage took place.

Reasons to declare a marriage void

What reasons can be used to declare a marriage void?

  • Legal Capacity - even if the marriage was formally executed, both of the parties to the marriage must have had the capacity to marry. This means they must have been legally able to marry each other. The question of capacity is based upon where each party lived prior to the marriage, not where the marriage took place. It can be based upon the individual (such as age or lack of mental capacity) or relationship (such as siblings). If the laws of the country the parties intended to live in after marriage would have given them capacity to marry then the Court can apply an "intended matrimonial home" principle to regard the marriage as valid notwithstanding other issues over capacity.
  • Consent - it is fundamental to any marriage that both parties consented to marriage. Where a party was acting under duress, mistake or unsoundness of mind this would make a marriage voidable.
  • Presumed marriage – a marriage may be presumed by the very fact that a couple go through a marriage ceremony and then live together as man and wife. The presumption is not absolute and can be challenged by evidence.
  • Non-marriage” - where a purported marriage ceremony fails to comply with the formal requirements it may create a "non-marriage" as opposed to a marriage which either party could seek to have declared void. This means it is treated as though it never existed.

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