For a couple to divorce, there must first have been a marriage.
While this statement may seem obvious, there have been cases where an apparently married couple were found on a technicality not to be legally married at all. Their wedding ceremony had not fulfilled the necessary legal requirements.
This happened to Mick Jagger and Jerry Hall, who wed in a Hindu ceremony in Bali in 1991. Their marriage was declared ‘null and void’ by a London high court eight years later. Jagger claimed their marriage was not recognised under UK law. Hall originally sought a divorce but later sought a nullity decree on the grounds their marriage was a marriage that never was as far as UK law was concerned.
Is there a marriage?
For a marriage to be legally recognised as such, certain formalities and legal requirements must be observed.
These include that the marriage is between a man and a woman, both of whom are over the age of 16 years at the time of the ceremony.
In England and Wales, but not Scotland, the written consent of a parent or legal guardian is required where either or both parties to the marriage are below the age of 18 years. Where the parents or guardian are not resident in the UK, their signatures should be properly witnessed by a Commissioner for Oaths, a Consular Officer or a notary member of the public such as a lawyer or Justice of the Peace. This can be officially waived in certain exceptional circumstances.
A wedding in England and Wales must be held in an approved place, such as a register office, a building approved for civil marriage, an Anglican church or another religious building that is registered for the solemnisation of marriage.
Documentary evidence of name, address, nationality, age and the ending of any previous marriage or civil partnership must be produced.
There are rules regarding the marriage of persons subject to immigration control. They must either have an entry clearance granted specifically for the purpose of marriage in the UK, or have the permission of the Secretary of State in the form of a certificate of approval.
All couples must give notice of their intention to marry, and this must be displayed on the notice board of a register office for 15 days before the ceremony.
These are some of the main requirements of a legal marriage.
Marriages end in three ways—death, divorce and annulment.
A divorce terminates a marriage. An annulment is a legal declaration that the marriage was not valid.
There are two types of annulment in England and Wales—void and voidable marriages.
A marriage can be declared void where it is found the couple were not eligible to marry in the first place. The declaration of nullity takes retrospective effect. Legally, the couple are then treated as if the marriage never took place.
A marriage can be declared void if the parties are within the prohibited degrees of relationship, they are under 16, either party was already lawfully married, the parties are not male and female, or it is a polygamous marriage entered into outside England and Wales and either party was domiciled in England and Wales.
Where a marriage is declared voidable, the declaration of nullity becomes effective only from the time when it is made, and has no retrospective effect. Legally, the marriage did take place
A marriage can be declared voidable if it has not been consummated, either party did not consent to it, either party was suffering from mental disorder at the time of the marriage, or the person against whom the nullity decree is being sought was suffering from venereal disease or was pregnant by a third party and their partner did not know.
In both void and voidable marriages, a court can make arrangements for the division of property in the same was if the couple were divorced.
The rules for annulling a civil partnership are different.
A court can grant an annulment where the required conditions for a civil partnership have not been met—for example, both partners must be over 16 and not in a civil partnership with, or married to, anyone else.
An annulment is then granted on the grounds the civil partnership is void (it never existed) or voidable (it did exist but is no longer legal). The application for annulment must usually be made within three years of the date of registration, although there are some exceptions to this rule.