In the case of Akhtar v Khan the wife was seeking to pursue such financial claims and an earlier court had held that there was a marriage which was void, rather than a non-marriage, which still allowed a financial claim to follow under the Matrimonial Causes Act 1973 after an application for a Nullity Decree.
In the higher Court of Appeal the judges analysed the fundamental basis of a marriage as defined in the Marriage Act 1949 which included it having occurred at a registered building, advance notice being given to the Registrar, the issue of a certificate, and presence of registrar or authorised person at the ceremony. In this case the ceremony was conducted in front of witnesses in a restaurant , the parties intended eventually to have a civil ceremony, they had four children, and had lived together for many years the Court of Appeal still found that this was classed as a ‘Non Marriage ‘ under S11 of Matrimonial Causes Act. The Court found that there can be such Non Qualifying ceremonies which consequently creates a situation where spouses believing they are married cannot then pursue financial claims.
This decision has proved controversial but what is clear is that as the law now stands many husbands and wives will not have the protection of bringing financial claims under the Matrimonial Causes Act against their spouse despite the length of marriage, having children, and their planned intentions. Under The Matrimonial Causes Act, claims whether as a result of divorce, Nullity , or Judicial Separation allow the Family Court scope to look at a parties needs and there is a degree of manoeuvre in seeking to argue that assets not expressed as joint property form part of matrimonial ‘pot’.
If an individual is seeking to make claims against their ‘spouse’ they may otherwise have to pursue a claim in respect of property under Trusts of Land and appointment of Trustees Act 1996 or Schedule 1 of The Children Act , both of which do not automatically assume acquisition of entitlement by marriage are complicated , expensive with no guarantee of success
It gives a lot of food for thought for anyone contemplating a Religious only ceremony or individuals who have never had their marriage formally registered.
If you want advice on issues relating to marriage and relationships at Garratts our Family team offer an hour long discounted first interview at £156 during which we can advise you as to your rights and confirm this to you in a subsequent letter. For an appointment call 0161 665 3502.