Introduction

In recent years the question of when a marriage should be valid, when it should be categorized as void, and when it will not be recognized at all, has attracted considerable attention. Yet much of the commentary – and many of the cases – fail to engage with the precise terms of the legislation governing this area.

Understanding how the law has evolved is crucial to an appreciation of why the concept of a ‘non-qualifying ceremony’, while unattractive to some, is nevertheless a necessary one under the current state of the law (Probert, 2013). Looking at when and why different provisions and potential grounds for invalidity were added over time also suggests ways in which the current framework might be reformed to minimize the likelihood of a wedding either resulting in a void marriage or no marriage at all.

The evolution of the law

Before 1753 marriage was governed by the canon law, and the validity of a marriage depended on whether it had been conducted by an ordained Anglican clergyman (Probert, 2009a). Non-Anglican ceremonies were not afforded legal recognition. The only exception to this was the acceptance that Jewish marriages were governed by Jewish law, but this apparent privilege rested on the fact that Jewish people were regarded as legal aliens.

It is telling that there are no decisions of the ecclesiastical courts holding non-Anglican ceremonies to be void. There would have been no point in the parties litigating where the outcome was a foregone conclusion, and no advantage in obtaining a decree of nullity at a time when that conferred no rights to apply for provision. The few early 18th-century cases that did consider the rights of couples who had gone through a non-Anglican ceremony were decisions of the common law courts, which did not have the right to decide on the validity of a marriage. Making the presence of an Anglican clergyman both necessary and sufficient was problematic in two respects. First, it meant that a marriage could be invalidated if the person who had solemnized it was not in fact ordained.