Leigh v Hudson

A court may declare that a ceremony with the trappings of marriage never created a marriage where it failed fundamentally to effect marital status. That is a declaration of a non-marriage, not a declaration that an existing marriage was void at inception, and is not barred by section 58(5)(a) of the Family Law Act 1986. The jurisdiction is rare and applies where the ceremony had no legal effect.

The parties had a relationship and a child. They later held a religious ceremony in South Africa, having agreed that the marriage register would not be signed and that the ceremony would not alter their legal status. A planned civil ceremony did not take place.

Mr Leigh petitioned under section 55 of the Family Law Act 1986 for a declaration that the South African ceremony was not a marriage. Miss Hudson petitioned for divorce. On 5 June 2009, Bodey J dismissed her divorce petition and made the declaration sought. Miss Hudson challenged that outcome, arguing that the declaration was in substance a declaration that a marriage was void at inception, contrary to section 58(5). The central issue was whether the court could declare that the ceremony had never created a marriage.

Lord Justice Thorpe delivered the judgment, with Lord Justice Wall and Lord Justice Patten agreeing. The application was refused.

1. Construction of section 58(5). The prohibition in section 58(5)(a) of the Family Law Act 1986 concerns a marriage which existed but was void at inception. It does not prevent the court from determining that an event never constituted a marriage.
2. Non-marriage and void marriage. In rare cases, a court must be able to rule that a ceremony having the trappings of marriage failed fundamentally to effect a marriage. Such an event has no legal status and does not require, or admit of, a decree of nullity. Describing it as a non-marriage or non-existent marriage is not merely a matter of terminology.
3. Application to the ceremony. The parties had expressly agreed that the register would not be signed and that the ceremony was not intended to change their status. The ceremony therefore fell within the category of a non-marriage. Bodey J was plainly right to make the declaration and to dismiss the divorce petition.
4. Authority. Bodey J had relied on the obiter observations of Hughes J in AM v AM [2001] 2 FLR 6. Thorpe LJ accepted Bodey J’s reasoning and conclusion. The court noted that the issue had so far mainly arisen in relation to religious ceremonies lacking legal effect.

Order: application refused.

• Court of Appeal (Civil Division): On 9 December 2009, refused the appellant’s application and upheld the substance of Bodey J’s decision.
• Principal Registry of the Family Division: Bodey J, on 5 June 2009, dismissed Miss Hudson’s divorce petition and made the declaration sought by Mr Leigh under section 55 of the Family Law Act 1986. No citation for that decision was stated.