Лектор докладно відповіла на питання: чи створює релігійна церемонія дійсний шлюб, а саме:

1. Legal requirements for a valid marriage under English law (Правові вимоги до дійсного шлюбу згідно з англійським законодавством).

2. When a religious ceremony will be recognized as a valid marriage (Коли релігійна церемонія визнається, як дійсний шлюб)?

3. Marriage presumption: definition, key features and legal value (Презумпція шлюбу: визначення, основні ознаки та правове значення).

4. Case review (Огляд судових справ).

У рамках характеристики дійсності шлюбу акцентовано на наступному:

1. Legal requirements for a valid marriage under English law (Правові вимоги до дійсного шлюбу згідно з англійським законодавством)

The legal requirement for a valid marriage in England and Wales:

The Marriage Act 1949 requires generally that a marriage must:

• take place either in a register office, approved premises or;

• in a place of religious worship that has been officially registered for marriages by the Registrar General for England and Wales;

• marriage must have been conducted by a person duly authorised to conduct a marriage (a Registrar).

All Register Offices have lists of buildings where marriages can legally take place. The staff there can also give advice about how places of worship can be registered for marriages.

Marriage Act 1949, section 2:

Marriages of persons under [eighteen]. A marriage solemnized between persons either of

whom is under the age of [eighteen] shall be void.

2. When a religious ceremony will be recognized as a valid marriage (Коли релігійна церемонія визнається, як дійсний шлюб)?

Requirements in respect of religious marriages: if the correct procedure is not followed, the marriage may not be legally valid:

1. Church of England marriages must be carried out by a member of the clergy, who registers the marriage. The marriage must be carried out in the presence of two witnesses and in accordance with the rules of the Church of England.

2. Jewish marriage ceremonies can be conducted according to religious rules and the official performing the religious marriage ceremony will register the marriage. There is no requirement for the marriage ceremony to take place in a registered building or in public.

3. Other religious marriages, such as Muslim, Sikh and Hindu marriages, must take place in a registered building. There must be at least two witnesses present, with either the registrar or an authorised person (i.e. an Imam) present. Both parties must make declarations in respect of their marriage.

Places of Worship Registration Act 1855: The owners or trustees of places of worship can certify to the Registrar General for England and Wales that a premise is used as a place of worship and request that it be recorded as such.

Guidebook for Secretaries (for Marriages) of Synagogues: 2.16 Marriages must be between persons both professing the Jewish religion and may take place in a synagogue, private house or any other venue as detailed on the schedule for marriage issued by the Superintendent Registrar.

Legal consequences of unregistered religious marriage:

Financial relief:

• if the marriage is valid, the parties to a marriage have access to the financial remedies flowing from divorce;

• the parties to a void marriage may seek a decree of nullity (when granting the decree, the court has the same powers to make orders for financial provision as on divorce);

• if the marriage is treated as a “non-marriage” the wife/husband has no claim to financial provision from the husband/wife.

Case review:

ŞERİFE YİĞİT v. TURKEY: The applicant contracted a religious marriage in 1976 and her husband died in 2002. In 2003 she brought an action, in her own name and that of her daughter, seeking to have her marriage recognised and to have her daughter entered in the civil register as her husband’s child. The District Court allowed the second request but rejected marriage the request concerning the . The applicant also applied to the retirement pension fund to have her late husband’s retirement pension and health-insurance benefits transferred to her and her daughter. The benefits were granted to the daughter but not to her mother, on the ground that the marriage had not beenlegally recognised. The applicant appealed unsuccessfully against that decision.

At paragraph102 of the judgment, the court held: “102. Accordingly, the Court is of the view that Article 8 cannot obligation be interpreted as imposing an on the State to recognise religious marriage. In that regard it is important to point out, as the Chamber did (see paragraph 29 of its judgment), that Article 8 does not require the State to establish a special regime for a particular category of unmarried couples (see Johnston and Others, cited above, § 68). For that reason, the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social security legislation, does not imply that there has been a breach of her rights under Article 8.”

3. Marriage presumption: definition, key features and legal value (Презумпція шлюбу: визначення, основні ознаки та правове значення)

Presumption of marriage - common law presumption where a valid marriage is presumed, as there is evidence of the components of marriage.

The presumptionarises from:

1. Cohabitation and reputation. Where parties have cohabited for such a length of time and in such circumstances that they have acquired the reputation of being spouses, a lawful marriage between them will be presumed, even if there is no positive evidence of any marriage ceremony having taken place (Cunninghams v Cunninghams (1814) 3 ER 939; Re Taplin, Watson v Tape [1937] 3 All ER 105).

2. Ceremony followed by cohabitation. Where there is evidence of a marriage ceremony, followed by the parties cohabiting, a valid marriage will be presumed, absent decisive evidence to the contrary (Hayatleh v Modfy [2017] EWCA Civ 70; Pazpena de Vire v Pazpena de Vire [2000] All ER (D) 201).

Conclusions:

• If the parties have complied with none of the formalities required for a valid marriage, the result must inevitably be a non-marriage.

• Religious-only ceremonies outside any place of worship, along with ceremonies conducted by non-religious belief organizations, are thus not sufficient to raise the presumption of marriage.

• If it can be shown that the ceremony complied with at least some of the requirements for a valid marriage, then the presumption will apply.

4. Case review (Огляд судових справ)

1) MA v JA and the Attorney General [2012]:

Facts: The petitioner and respondent underwent a ceremony of marriage in a mosque in 2002. The mosque was registered for the solemnisation of marriages under s.41 of the Marriage Act 1949 (MA 1949). The ceremony was conducted by an Imam. The petitioner and respondent intended that the ceremony would create a valid marriage under English law. The Imam believed he was ‘only’ performing the religious ceremony. It was agreed that the ceremony did not comply with the requirements of the Marriage Act 1949. The petitioner and respondent sought a declaration that the marriage was a valid marriage at its inception.

Decision:

• The presumption of marriage did not apply in this case as the evidence clearly established that the requirements of the Marriage Act 1949 were not fulfilled and the presumption that they were. could not be relied upon to establish

• Notwithstanding the above the marriage ceremony was in its character ‘of the kind’ contemplated by the Marriage Act 1949. It was conducted in an authorised building in the presence of an authorised person. A marriage was therefore created.

• The marriage was not void as the parties did not knowingly and wilfully breach the requirements of the Marriage Act 1949.

2) Akhter -v- Khan (2018) EWFC 54:

Mr Justice William in the High Court stressed that each case will be decided on its own facts to see if it falls within the Marriage Act 1949. The parties 18-year relationship was void, as opposed to a non-marriage. Ms Akhter was therefore entitled to a decree of nullity under the Matrimonial Causes Act 1973, as they had only had an Islamic marriage ceremony and not a civil ceremony.

3) Her Majesty’s Attorney General (Appellant) v Nasreen Akhter and Mohammed Shabaz Khan (Respondents) and Fatima Mohammed Hussain and Southall Black Sisters (Interveners) [2020] EWCA Civ 122:

The judgment reversed the decision of Williams J at first instance, in Akhter v Khan [2018] EWFC 54: The Petitioner and Mohammed Shabaz Khan (“the Respondent”) had an Islamic marriage ceremony (a Nikah) on 13 December 1998 at a restaurant in London. They knew that this had no legal effect. They have four children. The family lived in England and, for a number of years, in Dubai. No civil ceremonyever took place. The parties separated in 2016. The Petitioner issued a petition for divorce in November 2016. The Respondent filed an Answer in which he contended that the parties were not legally married. In her Reply, the Petitioner claimed, among other things, a degree of nullity under the 1973 Act. She contended that it was a void marriage. At the request of the Court, the Attorney General intervened in the proceedings. His contention was that the ceremony was of no legal effect and so the Petitioner was not entitled to a decree of nullity.

The decision: «…the Court of Appeal finds that the December 1998 Nikah ceremony did not create a void marriage because it was a non-qualifying ceremony:

• The parties were not marrying “under the provisions” of English law (Part II of the Marriage Act 1949).

• The ceremony was not performed in a registered building.

• No notice had been given to the superintendent registrar.

• No certificates had been issued, and no registrar or authorised person was present at the ceremony.

• The parties knew that the ceremony had no legal effect and that they would need to undertake another ceremony that did comply with the relevant requirements in order to be validly married…».