ARTICLE
The racialising effects of non-marriage in English Law:
A critical postcolonial analysis
Zainab Batul Naqvi
Reader in Critical Feminist Legal Studies, Manchester Law School, Manchester Metropolitan University, Manchester,
M15 6BH, UK
Email: [email protected]
(Received 19 January 2023; revised 12 September 2023; accepted 4 October 2023; first published online 31 October 2023)
Abstract
In this article I argue that the judicial concept of non-marriage racialises and orientalises minoritised communities
and their marriages. Applying a critical postcolonial lens, I show how the development of non-marriage has been
influenced by colonial racialising attitudes towards marriage. This has led to its application in racist and orientalist
ways to demean and other minoritised marriage practices. My analysis of the case law exposes three patterns in
the judicial discourse in this area. First, that the courts emphasise “English (Christian) marriage” and its supposed
hallmarks when deciding if a ceremony is non-existent; second that judgments foreground the technical, formal
aspects of the law obscuring the use of personal judicial opinions which are orientalist. Finally, the application of
this concept to playacting, sham and forced marriages at the same time as legitimate minoritised marriage
practices is demeaning and insulting to the already marginalised communities that practise them.
Keywords: Non-Marriage; Marriage Law; Coloniality; Family Law; Minoritisation
1 Introduction
1
In her televised 2021 interview with Oprah Winfrey, Meghan Markle shared details of her “real”
marriage ceremony three days before her public royal wedding to Prince Harry. The real ceremony
was conducted by the Archbishop of Canterbury in their garden with no other witnesses and they
exchanged personal vows. Why is this idea of two ceremonies so interesting? And how does it
concern minoritised communities in England and Wales? The private garden ceremony was a non-
marriage. Non-marriages are performed outside of the regulatory framework for legally binding
ceremonies set out in the Marriage Act 1949 if conducted in England and Wales.
Or, if celebrated abroad they fail to meet the requirements for legal validity in their place of
celebration. Non-marriages are non-existent and parties to them are therefore legal strangers or
cohabitants. In this article I argue that non-marriage is applied in ways that target minoritised
couples’ and communities’ marriage practices. The concept racialises and orientalises families and
communities through their marriage ceremonies. Non-marriage maintains and upholds the ideal
Western Christian marriage in English law. Legal responses to minoritised marriages are therefore
influenced by colonial racialising attitudes that privilege Christian marriages creating an orientalist
hierarchy which positions minoritised marriages as inferior.
2
Whilst existing literature recognises its
© The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative
Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and
reproduction in any medium, provided the original work is properly cited.
1
Special thanks to Maebh Harding for her comments on an early draft of this article.
2
The terms ‘racialised’ and ‘minoritised’ signify when people and practices are marginalised, excluded, or treated differently
because they are not white or associated with whiteness which was intrinsic in the colonial mission (El-Enany, 2020).
International Journal of Law in Context (2023), 19, 578–596
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discriminatory effects on minoritised couples (see e.g. Probert, 2002, 2013; Le Grice, 2013), little
attention has been given to questions of race and coloniality surrounding non-marriage. I address
this gap by analysing the law through a critical postcolonial lens. The term “non-marriage” changed
to “non-qualifying ceremony” in 2020 to address its problematic implications but the longstanding
connotations of the concept remain. Non-marriage has evolved solely in the courts but who is more
likely to have their marriage declared non-existent or non-qualifying?
For Meghan and Harry, the backyard wedding was a nice personal touch – their legal status as a
married couple would never be in doubt because of their royal wedding. Moreover, it was
conducted by an Anglican clergyman and they exchanged vows. Their private ceremony did not
fall greatly outside of the marriage ceremony aesthetic idealised by English law. However,
minoritised couples are not always in the same position. Their meaningf ul ceremony is one which
matches the norms of their families and communities. However, if their ceremony falls outside of
the preferred aesthetic, it will not be binding in English law. There is a disparity between who is
able to obtain legal recognition through a ceremony which is meaningful to them and who is not.
After outlining the legal background to non-marriage, I set out my critical postcolonial
conceptual framing for this article underpinned by two arguments. First, that legal responses to
minoritised marriages are influenced by colonial racialising attitudes positioning them as inferior.
Second, non-marriage is a manifestation of this marriage hierarchy and its disproportionate
application to minoritised ceremonies, so they fail to qualify as marriages in English law. I then
share three analytic arguments that emerged from my examination of over forty case reports. First,
that non-marriage has developed in response to the question “What is an English marriage?”
In answering this question, the courts have racialised and orientalised minoritised ceremonies to
confirm that “English” marriage is Western and Christian. Second, the emphasis on the form of
marriage ceremony over the parties’ intentions when deciding whether the marriage is legally
binding masks orientalist stereotypes imposed by the courts. Finally, the use of non-marriage to
refer to play-acting, sham and forced marriages whilst simultaneously applying it to ceremonies
that have been celebrated for thousands of years is demeaning and orientalist. We need to
reconsider the implications of non-marriage and its racialising underpi nnings before discussing
any changes to the law.
2 Legal background
The law in this area is ‘unnecessarily complex’ (Law Commission, 2015, para. 1.6). The common
law presumption of marriage tells us that a marriage ceremony is always presumed to be legally
valid unless it is actively challenged (see e.g. Chief Adjudication Officer v. Bath;
3
Probert, 2002).
The question of marriage validity can arise in different contexts. For example, if a spouse petiti ons
for a divorce, the other may argue that the marriage was never valid in the first place to prevent the
courts making financial orders for the petitioner (e.g. Hudson v. Leigh).
4
Or one of the parties has
died and the deceased’s family does not want the marriage to be recognised to prevent the spouse
and children from inheriting their wealth (e.g. In Re Bethell v. Hildyard).
5
A marriage’s validity
may be challenged for immigration reasons to stop a spouse and children from being granted stay
or leave to remain in the UK (e.g. ECO New Delhi v. SG).
6
Or to prevent the spouse from receiving
widowed parent’s allowance and other state welfare support (e.g. Bibi v. Chief Adjudication
Officer).
7
When a ceremony is challenged, the courts are tasked with deciding whether a marriage
is fully valid; recognised for limited purposes or non-existent.
3
[1999] 10 WLUK 747.
4
[2009] 2 FLR 1129.
5
(1887) 38 Ch. D 220.
6
[2012] UKUT 00265 (IAC).
7
[1998] 1 FLR 375.
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A valid marriage is recognised for all legal purposes. If celebrated in England and Wales, a valid
marriage is one which fulfils the requirements or formalities in the Marriage Act 1949. The 1949
Act sets out the routes for entering into a legally valid marriage covering civil and religious
ceremonies that are conducted by Anglicans, Jews, Quakers and all other faiths. However, none of
the individual statutory requirements like giving notice or registration are essential in and of
themselves (Fisher, Saleem and Vora, 2018). So overall, there is no clear guidance on what exactly
makes a marriage valid (Probert, 2002). This means that as long as a ceremony complies with
some of the formalities and the parties were not aware of the ones that were missed, it will still fall
within the scope of the 1949 Act and be valid (Probert and Saleem, 2018). For ceremonies
celebrated overseas, the rules of private international law provide the standard for a fully valid
marriage. As long as a ceremony complies with the law of the place where it was celebrated, it will
be valid for all legal purposes in the English courts (Lord Collins of Mapesbury et al., 2012,
Rule 73).
Marriages which are recognised for limited purposes can be acknowledged in certain contexts,
so the English courts have jurisdiction over them to provide relief and remedies. The most
prominent type in this category is the void marriage. A marriage is declared void because it has
some fatal flaw or defect. A void marriage never existed at law, but the courts still have powers to
make financial orders concerning the parties. A marriage can be void if one or both of the parties
lacked the capacity to marry because they were: related within the prohibited degree s through
blood or affinity; under the age of 16 or already married. In addition, a ceremony may be void
because the formalities are defective, and the parties ‘knowingly and wilfully’ disregarded them
(Matrimonial Causes Act 1973, s.11). Another marriage given limited recognition is the overseas
polygamous marriage celebrated in a place which permits polygamy between people who are not
UK residents, domiciliaries or citizens (Lord Collins of Mapesbury et al., 2012). These marriages
are not recognised for all legal purposes, but the courts can make orders and provide remedies for
the parties (Matrimonial Causes Act 1973, s.47). They are treated and framed as foreign marriages
which is why the English courts can cope with them to a limited degree.
Finally, a ceremony may be invisible or non-existent in English law because it ‘does not create
any kind of marriage, even a void one’ (Jackson, 1969, p. 86). Non-marriages or non-qualifying
ceremonies are lesser in status than void marriages (Leong, 2000). Whilst void marriages can
attract financial remedies like in divorce, a non-marriage cannot. The first key characteristic of
non-marriage therefore, is that it is neither fully valid nor recognised for limited purposes. Cases
resulting in findings of non-marriage have involved situations such as Islamic Nikah ceremonies
being performed in locations that are not licensed for marriage; a couple going through a civil
ceremony when they had already celebrated a legally binding marriage; certain cases of forced
marriage and other marriages where the courts felt a ceremony should not be recognised for policy
reasons (see further Probert, 2013).
A non-marriage that has been celebrated in England and Wales must also not purport or claim
to be the type allowed by English law or aim to fall within the scope of the Marriage Act 1949.
Probert (2013 ) states that the concept of non-marriage can be traced from R v. Bham
8
where a
Muslim imam who had performed an Islamic Nikah ceremony appealed against his conviction for
wilfully solemnising a marriage contrary to the Marriage Act 1949, s.75(2)(a). The conviction was
quashed, and it was held that ‘ the provisions of the Act of 1949 [do not] have any relevance or
application to a ceremony which is not, and does not purport to be, a marriage of the kind allowed
by English domestic law’ (Bham, [1966], p. 129). Later, this was expanded to ‘“marriages”
according to foreign religions, and to any other ceremonies which make no attempt to be
English marriages within the Marriage Acts’ (A-M v. A-M, [2001], p. 23.
9
See also Gandhi v. Patel).
10
8
[1966] 1 QB 159.
9
[2001] 2 FLR 6.
10
[2002] 1 FLR 603.
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This does not concern overseas ceremonies that are being challenged because the rules of private
international law would apply.
Another key development in defining non-marriages resulted from the decision in Hudson v.
Leigh
11
where a couple celebrated a non-legally binding religious ceremony in South Africa
because they later intended to have a civil ceremony in England. The relationship broke down
before the civil ceremony and whilst the wife applied for a divorce or alternatively a decree of
nullity, the husband applied for a declaration under the Family Law Act 1986 that the South
African ceremony was never valid. The judge outlined a much more detailed set of guidelines for
deciding when a marriage is non-existent:
‘Questionable ceremonies should be addressed on a case by case basis, taking account of their
various factors and features including particularly, but not exhaustively: (a) whether the
ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or
enough of the hallmarks of marriage; (c) whether the three key participants (most especially
the officiating official) believed, intended and understood the ceremony as giving rise to the
status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of
those in attendance. In most if not all reasonably foreseeable situations, a review of these and
similar considerations should enable a decision to be satisfactorily reached.’ (Hudson, [2009],
p. 1130)
This case concerned an overseas ceremony which meant the 1949 Act did not apply but the more
general private international law rules. However, to avoid any later confusion over the status of the
parties if they wanted to marry again, the court effectively exercised domestic jurisdiction through
the Family Law Act 1986 to decide that the South African ceremony never created the status of
marriage between the parties.
The debate around defining non-marriage experienced a resurgence in Nasreen Akhter’s cases.
In 2018, Akhter who had entered into an Islamic Nikah ceremony in the UK applied for a decree
of nullity after eighteen years of marriage. At first instance, the court held that the mar riage was
void because ‘save for the issue of legal validity, this was a marriage and a long one at that’ (Akhter
v. Khan, [2018], p. 598).
12
This was reversed on appeal because limiting the scope of non-marriage
to situations where there was clearly no intention to form any marital relationship would ‘open up
a path which would create very considerable difficulties :::’ (Her Majesty’s Attorney General
(Appellant) v. Nasreen Akhter and Mohammed Shabaz Khan (Respondents) and Fatima
Mohammed Hussain and Southall Black Sisters (Interveners) [2020], p. 158).
13
The court accepted
that the term non-marriage is pejorative and insulting so the new term ‘non-qualif ying ceremony’
was coined to shift the focus towards the ceremony.
Very recently, the Law Commission (2022) has published its full review of Weddings Law
which addresses non-marriage. Despite the reasoning in Akhter, the review proposes that the law
should be reformed to narrow the scope of a non-qualifying ceremony. This approach limits the
application of non-qualifying ceremonies to situations where the preliminaries have not been
properly carried out and the officiant is absent; the preliminaries have not been completed and the
couple believes the officiant is unauthorised; at least one person has not expressed consent at all or
at least one person is expressly consenting to a non-legally binding ceremony. In addition, the
suggestion is made to reform the law to provide financial relief to cohabiting couples whilst
recognising that couples in religious-only marriages would see themselves as married rather than
as cohabitants.
11
[2009] 2 FLR 1129.
12
[2018] EWFC 54.
13
[2020] EWCA Civ 122.
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3 Coloniality and English marriage: a conceptual framework
English law is Christian in origin. There is no separation between the Church of England and the
state, so the state ultimately upholds Christian values (Chatterjee, 2010; Rivers, 2012). Legal
responses to marriage are heavily influenced by Christian ethics: civil marriage which is
supposedly detached from religion follows the template of Anglican marriage (Rivers, 2017). It is
therefore unsurprising that the first English legal definition of marriage in Hyde v. Hyde and
Woodmansee
14
(hereafter Hyde) was framed as: ‘ ::: marriage, as understood in Christendom,
may for this purpose be defined as the voluntary union for life of one man and one woman to the
exclusion of all others’ (Hyde, [1866], p. 130). This definition was more aspirational than
authoritative since it excluded the possibility for divorce which was certainly allowed in 1866
(Probert, 2007). However, it indicates the wider attitudes around marriage in English law.
The Marriage Act 1949 and the requirements for a legally binding marriage are based on its
predecessors from the 1800s that are more explicitly Christian-inspired. English marriage law is
therefore structured by Anglican Christian understandings of marriage. Christian marriage is
privileged by the law, and this plays out in judicial understandings too.
What does this have to do with non-marriage? It has been argued that non-marriage may be
traced back to the R v. Bham decision in 1966 (Probert, 2013). However, I contend that non-
marriage has been a part of English marriage law for much longer. For example, the Clandestine
Marriages Act 1753 gives us a precursor to non-marriage. The 1753 Act set out the formalities for
a binding ceremony in English law and was designed to prevent clandestine marriages taking
place. Clandestine marriages were Anglican marriages that had taken place in front of an Anglican
clergyman but failed to meet all of the requirements of canon law and were considered void
(Probert and D’Arcy Brown, 2008). The Act therefore attempted to do away with limited purpo se
marriages and create an all or nothing approach. Marriages that were not celebrated in front of an
Anglican clergyman were not viewed as marriages in the first place: they were non-existent
(Probert, 2009; Naqvi, 2023). Here, we have an early example of marriages that were celebrated
entirely outside of the legal framework. We can see how English marriage law operated to
distinguish between the Anglican Christian norm and all other marriages. This dichotomous
approach continues to underpin what marriage is in English law. The factors that shape this binary
are the focus of this article.
We find another example in Hyde where a man petitioned for the dissolution of his Mormon
Christian marriage which had been celebrated overseas in Utah. His divorce petition was denied
because there was ‘strong doubt whether the union of a man and woman as practised and adopted
among the Mormons was really a marriage in the sense understood in this, the Matrimonial Court
of England’ (Hyde, [1866], p. 133). The marriage did not cou nt as a marriage to the English court
for the awarding of ‘remedies, the adjudication, or the relief of the matrimonial law of England’
(Hyde, [1866], p. 138). The judgment was limited to matrimonial relief but allowed for later cases
to deal with legitimacy and succession around such marriages. Part of the reasoning for this
concerned the wife’s second polygamous marriage, which was permitted by Mormon doctrine,
after the petitioner left her. However, the decision was also heavily influenced by the judge’s view
that ‘it is obvious that the matrimonial law of this country is adapted to the Christian marriage’
(Hyde, [1866], p. 135). Mormonism is a sect of Christianity but of course, the court here means
Anglicanism when referring to Christian marriage. The line is drawn between Anglican Christian
marriage and all other marriages. If you fall on the wrong side, your marriage does not exist or has
limited recognition. The principle remains today: the distinction between a valid marriage and
non-existent one turns on how well the ceremony matches Anglican Christian ideals.
The legal environment and culture that non-marriage has been developed in are heavily steeped
in coloniality which shapes how the law is applied in this area. Colonialism which involved
14
[1866] LR 1 PD 130.
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colonial powers annexing and taking control over colonised nations has happened in many forms
over the centuries but ‘none has been as violent or enduring in its radical transformation of the
globe as European colonialism’ (Mgbeoji, 2006, p. 857). The British empire is a prominent
example of European colonialism and the damage that it caused around the world endures today.
It is therefore important to think about the ideological effects of colonialism and coloniality which
encompasses ‘the cultural, political, sexual, spiritual, epistemic, and economic oppression/
exploitation of subordinate racialized/ethnic groups by dominant racialized/ethnic groups with or
without the existence of colonial administrations’ (Grosfoguel, 2007, p. 220). Colonial powers
sought to colonise minds and bodies through ideological and racial domination which was
undertaken ‘in colonial regions and Europe’ (Stoler, 2010). This emphasis on Europe is important
for understanding the operation of coloniality today in English law.
Colonial activities were justified through orientalism which created a false division between the
West and everyone else in the “Orient” who were racialised, colonised and minoritised.
15
Orientalism is a discourse that deals with the Orient and authorises views of it (Said, 1978).
Through these authorised views, the Orient and those associated with it are marked out by how
they differ from the Western standard and are therefore “othered”. This othering results in
orientalised communities and people being characterised as inferior and in need of control and
colonial rule. The domination over minds and bodies was carried out using the law. When a
territory was taken over by an empire, that empire’s legal order was also imposed on the colonised
space and its people. This imperial law told a particular story about the colonised and their
inferiority to subjugate them and legitimise colonial administration (Klerman et al., 2011).
Without the law, colonisation would not have endured in the colonies. This has led to a legacy of
European laws with European colonial values being embedded into legal systems around the
world (Kapur, 2019; Naqvi, 2023).
Another important tool for dominating the colonised was religion. It was extremely important to
civilise the natives by converting them to the superior Christian way of life. Rivers (2012)arguesthat
English law was directly used to coerce people into Christian practice, and this was replicated in the
colonies. Inherent in this correct way of life was the need for the natives to adopt virtuous (Christian)
family lives and structures (Grimshaw, 2007). Ideals of marriage and domesticity underpinned the
success of imperial governance and were a vital part of colonial culture which was ‘constituted in and
through the family’ (Cleall, Ishiguro and Manktelow, 2013). Imperial practices and ideals of
domesticity were therefore used to destabilise families and communities by taking them from their
original state and structure to “improve” them (McClintock, 1995). For minoritised communities
whether inside or outside of Europe, marriage and the family are mired in this violent context even
today. I argue that legal responses to minoritised families and marriages remain influenced by
colonial racialising attitudes that create an orientalist hierarchy of marriage which places Christian
marriage at the top. The positioning of Christian marriage in England was originally concentrated
on clandestine marriages: to “fix” all of the problems with marriage law, the standard Anglican
template was introduced. This matched the dominant population’s form of marriage in England at
the time. However, with time it became an important manifestation of the Christian supremacist
narrative that underscored the colonial mission and understandings of marriage throughout the
empire. The same panic about clandestine and irregular marriages arose in the colonies amidst the
imperial authorities fearing the loss of their Christian supremacist authority over the colonised.
English marriage is Christian marriage because most English people were Christian when the law
which still shapes today’s approach was developed.
15
By Orient, I mean places that are typically not considered part of the “West” or predominantly white nations with
Christian-influenced values and institutions (see Bonnett, 2004). European colonies fall under this but the Orient and
processes of othering are contextually specific and multilayered. My intention is not to impose the label or feeling of being
othered indiscriminately on all communities stereotypically associated with the Orient but to showcase the deliberate effects of
British coloniality and colonial legal thought on communities affected by the category of non-marriage.
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English marriage law is roughly divided into Anglican Christian marriage and all other
marriages. This is demonstrated in the way that the routes to a legally binding marriage are
constructed in the Marriage Act 1949. There are four routes to celebrating a legally valid religious
marriage. First, according to the usages of the Jews; second, according to the usages of the Quaker
community or Society of Friends; third, according to the rites and ceremonies of the Church of
England or Wales and fourth for all other religions in a form and ceremony that the parties
choose. The first three routes have far fewer requirements than the fourth one. For example,
Jewish ceremonies only have two requirements: the parties must be Jewish, and the ceremony
must be according to the usages of the Jews. For a ceremony that is for all other religions, the steps
include: a form and ceremony of the parties’ choice; open doors; two witnesses; the prescribed
form of words in the ceremony; the presence of an authorised person and it must be held in a
registered place of worship. There are far more hoops to jump through if you are not Jewish,
Quaker or Anglican when entering into a legally binding marriage in English law. For civil
ceremonies, there are two routes where a couple marries in a register office or on approved
premises. Again, these routes have more requirements than Jewish, Quaker and Anglican
ceremonies.
16
It is also noteworthy that Jewish and Quaker ceremonies were exempted from the requirements
in the Clandestine Marriages Act 1753, but this was because the authorities were not concerned
with them or their practitioners. Jewish marriages were a matter for Jewish (read foreign) law
whilst Quaker marriages had been described by Parliament as ‘pretended’ in a 1694 statute
(Henriques, 1908; Probert, 2009). The exemption did not state that they were legally valid in
English law just that they were exempt. Their legal validity was not confirmed until 1836 (Probert,
2009). This all points towards a hierarchy of legal marriage with Anglican Christian marriages at
the top and all other religions and communities at the bottom. Whether they need more steps to
achieve legal recognition or are viewed as a matter for foreign law, it is harder for minoritised
ceremonies to achieve legal recognition – they are classed as inferior which orientalises them.
Another consequence of this is visible in non-legally binding ceremonies. With more steps for a
ceremony if you are not Anglican, Jewish, or Quaker, it is easier to fall foul of the larger number of
legal requirements. The concept of non-marriage is disproportionately applicable to minoritised
ceremonies as couples marry in ways that fall outside the legal framework. This is especially true
since the current laws were formed before many of the migrant communities were established in
England and Wales through colonial and postcolonial movement (Mahmud, 1997). A non-
marriage is even more flawed than a void marriage. It is a non-starter and does not create a
marriage status (Leong, 1995). Jackson discusses how in ‘concubinage and the like, no act of the
requisite nature [to create a marriage status] exists’ (1969, p. 85). Non-marriages are akin to
concubinage, they fail to create a marriage status which tells a particular legal story about the
ceremony and the parties. One that is orientalist and degrading to them and their marriage
celebrations.
There are further problematic connotations attached non-marriage that it is illegal or
improper. When a marriage was designated as clandestine or void in the past, there was a sense
that it was done secretly and inappropriately. For non-marriages which are even more “flawed”,
these same negative connotations are apparent. If a void ceremony is ‘idle’ and does not change
the status of the participants, a non-marriage must be even worse than this in English law
(Re Spence, deceased).
17
This is mirrored in public perceptions of non-qualifying ceremonies.
Probert, Akhtar and Blake (2022) observe that at times they needed to reassure participants in their
study on this area that a non-legally binding ceremony was not illegal. The fact that some ‘felt – or
were made to feel – that they had done something wrong’ (Probert, Akhtar and Blake, 2022,
p. 52) is the clearest expression of the damage that non-marriage can cause. When the law operates
16
See further: Law Commission (2015) which provides a simple infographic on this area.
17
[1990] Ch 652.
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as part of colonial governance structures to make communities associated with the colonies feel
unsafe and insecure, these racialised and orientalised people automatically worry that they have
done something wrong. The colonialist law is making people feel this way because it wants them to
feel like they do not belong (see further Naqvi, 2021).
The differential treatment that targets these communities through racialising and orientalising
processes is further highlighted when we look at how legal responses to void marriages have
developed. Historically, when the ecclesiastical courts declared a marriage void the parties had no
rights to any remedies (Bird v. Bell;
18
Probert, 2020). Void marriages were never intended to
attract judicial remedies – they were originally like non-marriages. This changed to first provide
for any children of the relationship and later progressed to grant maintenance and alimony to the
parties. These developments were aimed at protecting parties from a decree of nullity because the
consequences were so drastic (Probert, 2020). Even then, the grave consequences of today’s non-
marriages were recognised, and lawmakers sought to limit them. It has been argued that void
marriages are indistinguishable from non-marriage, but the consequences are different. What has
caused this difference? I argue that the distinction is organised using the same colonial logics that
separate marriage into Anglican Christian marriages and all other marriages. This gradual
attachment of judicial powers to void marriages which are flawed but still attempt to fit within the
Marriage Act 1949 and its Western Christian paradigm shows how non-marriages are marked out
for not fitting with imperial ideals of domesticity. If it does not fit within the Anglican template,
it will not be a marriage – even if the ceremony would be legally recognised elsewhere.
19
Non-marriage is therefore, a manifestation of the orientali st hierarchy of marriages in English law
which overwhelmingly affects minoritised couples. Void marriages are also said to have never
existed in law, but the end results are different simply because they fit more with colonial ideals.
4 Thematic analysis findings
Non-marriage is a judicial concept developed through common law. The most effective way to
understand its development and application is to look at what is being said and done in the courts
because judges are active agents who represent mainstream understandings and as a result
reproduce orientalist, racialised and Christian discourses (Herman, 2011; Naqvi, 2017). I have
analysed over forty case law reports that I sourced on the legal database Westlaw using the
keywords ‘non-marriage’ and ‘non-qualifying ceremony’. I read each judgment through a critical
postcolonial lens which meant that I paid attention to how the courts described non-marriage as
well as the wider context surrounding each case. I recorded any recurring themes or patterns in the
reasoning and approaches that displayed the wider context and influences surrounding these
judicial perspectives towards non-marriage (Braun and Clarke, 2006). What follows is a discussion
of the promine nt themes and select examples from the case law that illustrate them. This is not an
exhaustive study of non-marriage and there are limitations to what I have done. I could have
potentially looked for even earlier cases and looked into archival sources that provided further
context around the cases at the times they were heard. This issue would also benefit from empirical
research which shares people’s stories of non-marriage. So, this does not reveal everything about
non-marriage and its effects on minoritised communities in England and Wales. My aim is to
contribute to a larger ongoing discussion about what counts as a legally valid ceremony whilst
calling for a more contextualised understanding of how the law affects the marginalised. My
discussion also supports the case for more detailed empirical explorations into the effects of non-
marriage on minoritised communities.
18
(1754) Lee 621; 162 ER 367. Thanks to Rebecca Probert for her guidance on this point.
19
For example, in Akhter v. Khan [2018] although the couple had undergone an Islamic Nikah ceremony in the UK which
was not legally binding, they were treated as validly married in the United Arab Emirates where they lived for a number of
years.
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5 What is marriage in English law?
Earlier I explained how the courts are generally tasked with deciding if a marriage is valid,
recognised for limited purposes, or non-qualifying. There is an added underlying aim for them
which is to answer the question of ‘What is an English marriage?’ When answering this question,
the courts operate within the colonial Christian context that permeates the English legal system:
‘A Mohammedan marriage, using the term “marriage,” is something quite different. Ladies
taken to wife in the Mohammedan sense do not acquire that status and that position which
the sole wife allo wed in Christian countries is given and enjoys. The difference between these
two positions has been often pointed out.’ (R v. Hammersmith Superintendent Registrar;
Ex parte Mir-Anwaruddin, p. 466)
20
For most of the past millennium, English marriage law has been sh aped both by Christianity
and by how other marriage practices differ from the European Christian standard. This was
reinforced in Mir-Anwaruddin where an Indian Muslim law student married English woman
Ruby Hudd in a civil ceremony at a Register Office and then divorced her by talaq in the Indian
courts. When he tried to marry a second woman a year later in England, questions arose about
whether the first marriage had been dissolved. The court held that a marriage celebrated in
England in accordance with English law could not be dissolved by the husband pronouncing the
talaq because it was only effective for ‘Mohammedan’ marriages (Savage, 2008). This was because
Ruby and any woman married in English law was a ‘Christian wife’ who enjoys a superior status to
wives ‘in the Mohammedan sense’. A Christian wife cannot therefore be divorced under
‘Mohammedan’ laws and procedures. Probert (2021) notes that Christianity is mentioned over
fifty times in the judgment as the court stressed the nature of marriage in England. In doing so, the
court drew a clear line around marriage in English law. At its core, English marriage is Christian
and in this decision any woman marrying under English law, regardless of her beliefs was also
viewed as a Christian wife. As Fitzpatrick observes, Christian marriage is:
‘intended to include many marriages which can be called “Christian” only because they
conform to a type which we are apt to regard as peculiar to Christianity ::: [it] is [also]
intended to exclude marriages, say of a polygamous nature, whic h some Christian
community might, without ceasing to be Christian, think fit to sanction among its members
in an out-of-the-wa y part of the world’ (1900, p. 360).
Christian and ‘non-Christian ’ marriages may be celebrated among Christians and non-
Christians.
21
This tells us that English marriage is shaped by more than Christian ideals, that it is
designed to preserve a particular set of priorities and a hierarchy where those who are English still
remain at the top. If we think about Fitzpatrick’s description of non-Christian marriages being
sanctioned between Christians in an ‘out-of-the-way part of the world’, we see how western
Christian ideals of monogamy can be disposed of somewhere far away. There is an excuse for
Christians who enter into non-Christian marriages and may need to engage with polygamy. It is
unlikely that the same accommodations for a non-Christian would be made. Mir-Anwaruddin
was not classed as a Christian husband despite Ruby being a Christian wife. He was racialised,
orientalised and could not rely on his own personal laws to divorce an English Christian wife: it
was a non-divorce. Their marriage was English and could only be dissolved by English means.
A Christian can enter into a Christian or non-Christian marriage without ‘ceasing to be Christian’
20
[1916-17] All ER Rep 464.
21
The term non-Christian is contentious because it orientalises communities by identifying them as what they are not or
“fail to be”, but I use it here to highlight how orientalist the division between English (Christian) marriage and all other
marriages is.
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so they remain within understandings of English marriage, but a non-Christian will always be an
outsider. As colonised others, they cannot be English, only their marriage can if it is performed in
the proper English Christian way.
As time went on, the case law has fewer direct references to Christian marriage but that does
not mean thes e influences have disappeared. We see this through the idea that a marriage in
English law must bear certain ‘hallmarks’. For example:
‘It seems to me, having considered the facts, that this ceremony that took place in 1993 bore
the hallmarks of an ordinary Christian marriage :::’ (Gereis v. Yagoub, p. 858)
22
In Gereis, the Christian ceremony was performed in an unlicensed Coptic Orthodox Church.
The couple had been told that the ceremony was not legally binding, and they would need to have
another civil ceremony, but they ignored this. When the marriage broke down, the petitioner
asked for a decree of nullity whilst the respondent argued that they had been in a non-marriage.
The marriage was annulled, and the decision was based on these comments about the ceremony
bearing ‘the hallmarks of an ordinary Christian marriage’. Here, the value judgement about an
English marriage is centred on Christian marriage and whilst the couple had celebrated a
minoritised marriage ceremony, the degree of separation from mainstream Anglican ideals was
not distant enough to make the marriage non-existent (Probert, 2002; Gaffney-Rhys, 2010). It fell
within the boundaries of English marriage even though it never purported to be a marriage within
the scope of the Marriage Act 1949. This adds a layer of protection for those in Christian
marriages which non-Christian ceremonies can never enjoy. The orientalist division between
Christian marriage and all other marriages becomes visible again leaving the non-Christian
ceremonies on the outside. The courts have since distanced themselves from this case and the
judgment with the decision even being described as ‘merciful’ (A-M v. A-M, [2001], p. 24).
23
However, this idea of marriage bearing certain hallmarks remains in the courts’ assessments of
non-marriage today. When deciding if a ceremony is non-existent, the judge in Hudson included a
consideration of ‘whether it bore all or enough of the hallmarks of marriage’ ([2009], p. 1130). But
what are these hallmarks of marriage? These hallmarks the courts are looking for today probably
do not differ much from the hallmarks of an ordinary Christian marriage. This hierarchising
discourse remains central to English legal understandings of non-existent marriage. Minoritised
communities and their marriage practices are still othered – their ceremonies are much less likely
to have enough of the hallmarks of a true English marriage, so they are constructed as inferior.
Within this pattern of discourse, there is another concerning marker – that of ‘ ordinary’.
In Gereis it was not just that the ceremony had the hallmarks of a Christian marriage but an ordinary
Christian marriage. This type of language is seen in later cases like that of Burns v. Burns:
24
‘The wife’s evidence and case is that the build-up to the wedding day was in every sense
normal and conventional :::’ (Burns [2007]: 816)
‘Her version happens also to accord with common sense and ordinary human behaviour.’
(Burns [2007]: 818)
These signifiers of ‘normal’, ‘conventional’ , ‘common sense’ and ‘ordinary human behaviour’
highlight the deeper value judgements being placed on couples’ behaviour and practices when
deciding if their marriage is valid. In Burns, the couple married in a hot air balloon in California
but did not obtain the necessary marriage licence until after the ceremony had taken place which
22
[1997] 1 FLR 854.
23
See also Chief Adjudication Officer v. Bath where the judge preferred to express no view on Gereis.
24
[2007] EWHC 2492 (Fam).
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meant the marriage was invalid according to local Californian law. As this was an overseas
ceremony, the court had more discretion whilst applying private international law rules but
ultimately had to decide whether the marriage was void in English law rather than whether the
ceremony was valid according to private international law. Whilst this context is important, the
attitudes underlying this decision where the English court was effectively exercising domestic
jurisdiction for an overseas ceremony remain problematic. It was held that the shortcomings in
the formalities were a mere technicality which were enough to render the marriage invalid but
nowhere near the category of non-marriage. The judge placed value on the wife’s evidence about
the wedding planning and bookings being normal and conventional which gives insight into the
ways that value judgements can be made about ceremonies according to how well they fit with
‘convention’. After the hot air balloon ceremony, the couple returned to England, the wife changed
her name, and they had a lavish Church blessing followed by a reception with ‘all the hallmarks’ of
a wedding reception. All of these little details painted the picture of a normal and conventional
situation which led to an ordinary ceremony and marriage.
Contrast this with the portrayal of the religious Hindu ceremony celebrated in a London
restaurant in Gandhi:
‘I have been shown photographs from which it is clear that the ceremony was carried out in
considerable style.’ (Gandhi, [2002], p. 606)
The Church blessing in Burns was lavish and the reception had the hallmarks of a wedding
reception whilst the ceremony for Gandhi happened in considerable style. However, we see that it
is only for Burns these details about the surrounding events were helpful for avoiding the
categorisation of non-marriage. The ceremonies in these cases were different and there was more
of an attempt to enter into a legally binding marriage in Burns but I call attention to the latitude
given to a ceremony between an English couple who later had a Christian Church blessing. Their
behaviour leading up to the ceremony and the events after were all viewed favourably by the court
for a simple reason: the Burns ceremony and couple fit more closely into the ideal western
Christian template. The overt value judgements of their normal, conventio nal, common-sense
situation are racialising and orientalising to those who differ from that standard. Minoritised
ceremonies are always less likely to conform to these normal, ordinary, conventional standards of
marriage because they are too different and too foreign. The ceremony in Burns was overseas but
the English parties and their later Church blessing negated the foreign, peculiar nature of the hot
air balloon ceremony in California. Minoritised couples and their marriages cannot compare.
These markers of ordinary and normal cannot be removed from the context that they have
developed in. What is ordinary in English marriage law, is ordinary because of the representation
of European and Christian marriage as the ideal. The approach to minoritised marriage practices
in English law has long been designed to see them as the exception: the exception to what is
ordinary, the exception to what is a true marriag e. They have been othered, racialised and cast as
foreign based on who is celebrating them and where they come from. The orientalist
underpinnings for English marriage are strengthened by the courts’ assessments of what is normal,
what is common sense and what is ordinary. Those who fail these assessments are abnormal and
strange – they and their marriages are less likely to be valid because they cannot meet these
colonial standards.
6 Form versus intention – who suffers?
My second thematic argument concerns the courts’ emphasis on the form of a marriage ceremony
over the parties’ intentions when deciding if a marriage is valid at a domestic level. Whilst this
focus presents the law as technical and concerned with the formal requirements making it seem
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fair and im partial, this masks the endemic orientalism imposed on minoritised people in judicial
decisions. By pretending to be concerned with form of marriage over intentions, the courts
pretend that there is nothing political in their approach to non-marriages. But the law’s ‘merely
technical’ façade is just a smokescreen to obscure the coloniality of judicial attitudes in this area
(Kennedy, 2002; Watt, 2017). Despite there being a number of factors in the Hudson checklist
mentioned earlier for deciding when a marriage is non-existent, there has been a general pattern in
the case law where the form of the ceremony and some attempt at compliance with the Marriage
Act 1949 are presented as the priority over the intentions of the parties and people present at the
ceremony.
25
This reflects the law’ s emphasis ‘on the external appearance of the marriage’ (Probert,
2002, p. 406). It gives the false impression that there is little space for personal views in the courts
because they are only interested in the technical facts of how the ceremony looked and how well it
complied with the Marriage Act 1949. If the ceremony fits with the 1949 Act, the court is
uninterested in looking at the intention. If it does not fit, the court checks if it is ‘close enough ’ to
the 1949 Act and suddenly intention starts to matter.
There are two problems with this. First, it supports the orientalist hierarchy which privileges
the Anglican Christian ceremony because emphasising the form of ceremony requires an
assessment of how well a ceremony matches this ideal. Second, whilst looking at these technical
requirements, the courts racialise and ‘other’ parties to non-marriages by placing more weight on
their intentions and character than they want us to believe. In AAA v. ASH,
26
a man had registered
himself as the father on his child’s birth certificate on the basis that he was married to the child’s
mother. The marriage was an Islamic Nikah ceremony and not binding in English law. It was
therefore held that he had not followed the correct procedure to be registered on the birth
certificate as the child’s father. The father and his behaviour are described as follows:
‘I have been concerned about the father’s evidence. His zeal has on occasions led him to
exaggerate or persuade himself incorrectly that events happened when they did not :::
I entirely accept that the Muslim marriage was the only form of marriage which would have
meaning for him. When he thought its significance to him was being questioned, he reacted
in an unusually excited manner, asking if he was being called a fornicator. I do not criticise
his strong beliefs. But he allowed them to give answers which were not accurate.’ (AAA,
[2009], p. 44)
These judgment excerpts describe the father as passionate and excited because of his ‘zeal’ but
what is really being said here about him? These descriptors are all examples of coded language that
hide racial stereotyping (Bush, 2011). These terms imply the father is emotional, irrational, and
unreasonable due to his Islamic beliefs. His reaction was ‘unusually excited’, and he exaggerates.
He persuaded himself that ‘events happened when they did not’. This portrayal of the father as
unreliable and emotion-driven has a long history in colonial portrayals of racialised people.
Colonised people were not intellectually sound or capable of rational thought, they needed to be
controlled and tamed because the administration and institutions cannot engage with them as
people. This language, these descriptions of the father are dehumanising (Fanon, 2008). They
reduce him to being unreliable, dishonest, and delusional. He and his beliefs are not being
criticised and yet his beliefs are still the root cause of the problem. Islam is the problem – the
othered man, his othered faith and the marriage he believes in are the issue. The examination of
the marriage provides the court with a greater opportunity to scrutinise this Muslim man and his
faith before declaring his relationship non-existent. Non-marriage is therefore used as a racialising
25
For example, Dukali v. Lamrani (Attorney-General Intervening) [2012] EWHC 1748 (Fam); El Gamal v. Al Maktoum
[2012] 2 FLR 387; Sharbatly v. Shagroon [2012] EWCA Civ 1507. See further Barton and Probert (2018) and Cummings
(2020).
26
[2009] EWHC 636 (Fam).
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and orientalising tool – it allows the courts to judge not only the ceremony but the parties and
their beliefs.
In a more recent example, we see this description of the minoritised parties to a Nikah ceremony:
‘Although a traditional Muslim and naïve in some respects she was not fundamentalist.
I think she was quite meek. The husband in contrast would be dominant. Although
intelligent and university educated there is still a strong streak of traditionalism in the wife’s
attitude to roles in marriage.’ (Akhter, [2018], p. 596)
Cummings (2020) notes that the description of the wife falls into harmful and essentialist
stereotypes of Muslim women that depict them as in need of delivery. He further argues that the
Court of Appeal tends towards neutrality but then fails to examine the underlying cultural
assumptions that have developed marriage law. However, there is no neutrality here and the
certainty with which the judge pronounces these views of the husband and wife are an example of
‘authorising views’ of the ‘other’ (Said, 1978). Further, the descriptions of both the wife and the
husband are an overt example of the colonial saviour narrative where a brown woman needs to be
saved from a brown man and only the white colonial judge and court can do this (Spivak, 1999).
This is another facet to the colonial civilising mission where colonial encounters happened
because it was good for the colonised people – it improved their lives and ways of living which
included their marriage practices. It brought them from their backwards traditional ways into the
civilised present. The wife is in a position to be saved because ‘she was not fundamentalist ’ and was
‘intelligent and university educated.’ This represents the model minority trope of minoritised
people who have successfully ‘transitioned’ into the colonial society. The trope is used to drive a
wedge between the right kind of minoritised person and those who have not managed the same
transition (Wing, 2007). The wife is the right kind of brown woman – not a threat but a victim.
Moreover, her intelligence and education mean she is the right kind of victim – one who has
intellect. She is worth saving because she is traditional but not fundamentalist.
Her husband by contrast ‘would be dominant’. The conditional tense shows us that the judge is
assuming what kind of brown man the husband is. The orientalist assumption of his dominance is
imposed upon him to fit with the colonial saviour narrative: to exist in opposition to the wife’s
meek and traditional nature. As a result of the judge’s orientalist approach to the parties, the wife
was ‘rewarded’ with a decree of nullity rather than non-marriage. This case may have been seen as
positive with the judge taking a holistic view of the law and including human rights but at what
cost? The same problematic, regressive and colonialist views underpin the decision, leaving
minoritised couples and their marriages at the mercy of these racialising and orientalising
discourses. The idea that the courts focus on the technical, factual formalities of the ceremony and
pay less attention to the intentions of the parties may seem true, but judges include personal, racist
views in their decisions. The category of non-marriage provides an opening for the judge to shape
legal responses to this marriage, the parties, and their religious background according to these
problematic attitudes. Judges are agents who are actively reproducing orientalist stereotypes in the
courts based on their own thoughts and feelings (Herman, 2011). Stereotypes that belittle and
dehumanise minoritised communities. It is impossible to separate non-marriage out from the
racist and othering processes that formed its existence in the first place.
The broader orientalising of communities is visible in another recent case:
‘Furthermore, I suspect that most passengers on the upper deck of a Birmingham bus,
whether or not they are of Bangladeshi or Pakistani heritage, would regard the appellant as a
“lawful” (rather than a polygamous) widow.
’ (NA v. Secretary of State for Work and Pensions,
p. 6343)
27
27
[2019] 1 WLR 6321.
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A man married for the second time in Pakistan in a religious ceremony before obtaining a divorce
decree absolute for his first marriage in the UK. His first wife passed away three years after this
second ceremony. The second wife was his religious wife for eight years and his only living wife for
five years before the husband passed away. The Secretary of State rejected the second wife’s claims
for bereavement payment and widowed parent’s allowance because her marriage was polygamous
at its inception and invalid in English law. The question for the court was whether the surviving
partner of a religious marriage recognised in Pakistan could claim thes e benefits. It was held that
since the marriage was valid in Pakistan and Islamic law, it was not good enough to say that the
widow ‘had never been married in the eyes of the law of England and Wales’ (NA, [2019],
p. 6340).
28
The ceremony did not lead to a non-marriage. Again, we see the desired outcome for
this wife using the more flexible private international law rules, but the judicial reasoning is
underpinned by harmful orientalist assumptions about the marriage.
The reference to the ‘ upper deck of a Birmingham bus’ with Bangladeshi or Pakistani people
shares stereotypes about the communities in Birmingham and their heritage. A story is still being
told about the minoritised Bangladeshi and Pakistani communities in the UK – that they are
present in Birmingham, that they travel on the bus. This comment does not add to the judgment,
yet it is included presenting the judge’s view of Birmingham and these communities along with the
mode of transport that they are stereotypically considered as using. These remarks may refer to the
reasonable person test which historically asked what a man on the Clapham omnibus would
consider reasonable. However, as explained in Healthcare at Home Limited v. The Common
Services Agency
29
the behaviour of the reasonable man is determined by applying a legal standard.
The test is a standard that the court defines and then applies and so it follows that even if the test is
‘tailored’ to the facts of the case, it is still the court’s understanding of the reasonable person that
decides what is reasonable which can be bound up in stereotypes.
This is then followed by the contrast between a ‘lawful’ and ‘polygamous’ wife which provides
insight into broader views of minoritised marriage forms like polygamy. It is important to clarify
here that polygamy is not unlawful or illegal, it is simply not legally binding when celebrated in
England and Wales.
30
It is a form of non-marriage. The emphasis on lawful marriage versus
polygamy creates an orientalist division which is inaccurate and spreads fear amongst minoritised
communities. As mentioned earlier, people may be afraid that their non legally binding
ceremonies or non-marriages are ‘illegal’, and this type of judicial discourse does nothing to help
(see Probert, Akhtar and Blake, 2022). By failing to match the Anglican template communities are
made to feel they are engaging in criminal behaviour which is untrue and orientalist. Again, the
thoughts and feelings of the judge come to the fore: the form of the ceremony may be prioritised in
non-marriage cases but that does not mean intentions, thoughts and feelings, especially those of
the judges are insignificant. The category of non-marriage and its association with illegality and
unlawfulness are underpinned by racist and colonialist stereotypes. It is a legal category which
degrades vulnerable and marginalised communities based on the ways they celebrate their
relationships and build their families and communities. Representations of the law and the courts
as technical and neutral are dangerous because they downplay the harmful orientalist and racist
stereotypes being propagated at an institutional level. They do not just affect the couples in these
relationships but have wider effects on communities and can make them feel vulnerable, worried
that their marriage practices are illegal and liable for punishment.
28
The appeal against this decision was later successful. See Akhtar v Secretary of State for Work and Pensions [2021] EWCA
Civ 1353.
29
[2014] UKSC 49.
30
This is not to be confused with the criminal offence of bigamy which requires a person to enter into what would be
multiple legally binding ceremonies in English law. It is rarely enforced as a criminal offence today (see Offences Against the
Persons Act 1861, s.57; Naqvi, 2023). This is unlikely to be the kind of situation that minoritised communities engage with – they
usually involve one legally binding ceremony and subsequent non legally binding ones.
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7 From play-acting to forced marriage
I finally argue that the designation of minoritised marriages as non-marriages when the concept is
simultaneously being applied to play-acting, sham and forced marriages is orientalising and
demeaning. Throughout the case law, there are examples of non-marriages provided by judges to
help us understand what this type of ceremony entails. The racist hierarchy that shapes the legal
approach to marriage ceremonies constructs certain fake forms of marriage as equivalent to
minoritised practices that do not fit with the ideal Anglican template. These examples include
ceremonies performed in a play or soap opera and promises exchanged between children (see for
example: Gereis, [1997]; A-M, [2001]). Judges specify that these are ‘extreme’ examples, but this
obscures the starting point of non-marriage: that it applies to ceremonies that are for pretend
purposes. As Probert argues ‘ ::: nobody could think that a play-marriage could constitute a valid
marriage’ (2002, p. 406). In another more detailed example:
‘It is inherently difficult to come up with examples (of a questionable ceremony, ritual or
event) which do not appear fanciful; take a nervous and eccentric couple who wished to have
a full dress rehearsal of their wedding ceremony, so as to be sure that everything would go
alright on the day. Assume that the vicar was present and that he used the full wording of the
marriage service.’ (Hudson, [2009], p. 1147)
Play-acted marriages are the most extreme end of the spectrum for defining non-marriage but
even something less ‘fanciful’ is positioned as abnormal. Non-marriage encompasses extreme,
abnormal situations that only nervous and eccentric couples engage in. This othering discourse
marks the couple out as different and strange with their behaviour – they are othered by the judge
and this is because of their nature and personalities as a couple that lead to them acting in ways
which lead to a non-marriage. In this passage, we also see that the rehearsal is one that involves a
vicar and marriage service. The ceremony being practised is a Christian one which shows us how a
less fanciful form of non-marriage is viewed by the courts. Here, a dress rehearsal or play-acted
version of a legally binding ceremony would be non-existent, but can we compare this to a
minoritised marriage ceremony that is definitely not an elaborate dress rehearsal? Should they be
in the same category?
The court is telling us that the Christian play-acted ceremony is the equivalent of a full
minoritised ceremony – a form which may have been celebrated for even longer than
Christianity’s existence. The orientalist hierarchy of marriages and how they are solemnised
comes into play again placing Christian marriage at the top. These other(ed) marriages can only
reach the level of a practice, pretend Christian marriage. We should forget them being recognised
as valid and binding ceremonies in their original form. Even though the courts emphasise that
these are extreme examples, this does not detract from the fact that minoritised ceremonies are
still being dismissed and associated with fake, pretend rehearsals. The courts have been known to
also include ‘alternative marriage rites’ and ‘self-devised rituals’ in understandings of non-
marriage (A-M, [2001], p. 23). This may seem like another step away from the extreme playacting
end of the non-marriage spectrum, but the opposite is true. These self-devised and alternative rites
can include handfasting which was historically considered a part of pagan custom, but this never
existed (Probert, 2009). It therefore includes rituals that have never created a legally binding
marriage in any jurisdiction (Le Grice, 2013). This subcategory of non-marriage relates to
ceremonies which are viewed as alternatives to marriage ceremonies and are implicitly intended to
create an alternative relationship or partnership to that of a married couple. To include
minoritised marriage ceremonies alongside soap opera marriages and alternatives to marriage
when they are recognised in law around the world and have been practised by communities
throughout history demeans them and the people who practise them. Again, they are othered:
their ceremonies and relationships are just not good enough for English law and never will be.
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Another trend that has appeared in the courts shows us where non-marriage is intertwined
with other racialised concepts or forms of marriage:
‘There are also, in my judgment, compelling reasons of public policy why sham “marriages”
are declared non-marriages.’ (A Local Authority v. SY, para. 50)
31
In this case, a young white woman entered into a Muslim marriage with a Pakistani man who then
tried to rely on the marriage to remain in the country. Their Nikah ceremony was declared a non-
marriage and the husband could not rely on it to make a case for stay in the UK. The Immigration
and Asylum Act 1999 defined a sham marriage as one entered into ‘for the purpose of avoiding
UK immigration law’ (see also Wemyss, Yuval-Davis and Cassidy, 2018). It is therefore
particularly associated with racialised immigrant communities. Like with play acting, elaborate
dress rehearsals and self-devise d rituals, to describe sham marriages as non-existent seems like a
reasonable approach. These marriages are not intended to be real; they are not recognised the
world over and should not be seen as marriages in the first place. However, what happens to those
marriages which do not fall under these subcategories yet are still thrown into the same boat?
These ceremonies are disproportionately likely to be minoritised or associated with racialised
minorities in the UK. In this way, a particular narrative is being spread about racialised and
minoritised marriage practices that fail to fit within the Anglican template. A narrative about them
not actually leading to valid marriages which affects not only the couple but their communities
with fears that they are acting illegally and that they may even be accused of engaging in sham
marriages. It is not enough to present sham marriage as another ‘extreme’ example, the category of
non-marriage is still loaded with misunderstanding and negative meaning even for the “non-
extreme” examples.
This fearmongering is also borne out by the use of non-marriage to “save” minoritised
individuals from forced marriage when it is too late to apply for a decree of nullity:
‘The plaintiff in this case does not seek a declaration that the marriage was void at its
inception, rather, she seeks a declaration that there was never a marriage capable of
recognition in England and Wales.’ (B v. I (Forced Marriage), p. 1725)
32
In this case, a woman was unable to bring proceedings to have her forced marriage annulled
within the three-year statutory period. She therefore effectively applied for a declaration of
non-marriage which was granted. As a result, forced marriage was included in understandings of
non-marriage and the same approach has been deployed in later cases (see e.g. SH v. NB).
33
Forced
marriage is highly racialised and associated with minoritised communities (Shariff, 2012) and the
courts feed into this:
‘However, despite this I am satisfied that the wife was placed under a great deal of physical
and emotional pressure to withdraw this case. That sort of pressure is wholly unacceptable in
a civilised society, given that courts are set up to deal fairly with all those who appear before
them ::: Varying cultures have different perceptions and traditions. All are worthy of equal
respect and I start from that position. I make it clear at the outset of this judgment that I pay
full regard to Pakistani traditions and cultural expectations. They are different from those in
Western culture but that does not make them any less worthy.’ (Re P (Forced Marriage),
p. 2062)
34
31
[2013] EWHC 3485 COP.
32
[2008] EWCA Civ 248, [2010] 1 FLR 1721.
33
[2009] EWHC 3274 (Fam), [2010] 1 FLR 1927.
34
[2010] EWHC 3467 (Fam), [2011] 1 FLR 2060.
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In this decision, the judge attempts to temper their reasoning with an endorsement of other
cultures but there is no escape from that colonial standard of civility. The pressure placed on the
wife to marry was ‘wholly unacceptable in a civilised society’. It is therefore particularly
unacceptable to permit forced marriage in the civilised West. In English law it is even criminalised
when the ceremony is not legall y binding (s.121(4) Antisocial Behaviour, Crime and Policing Act
2014; Probert and Saleem, 2018). It goes without saying that forced marriage is wrong under all
circumstances around the world. However, there is no missing the notion that forced marriage is
uncivilised, foreign and something that other cultures propagate. Those that are different from
Western culture are insulted as being uncivilised but then later placated by the judge because they
are worthy of respect. Forced marriages and by extension non-marriages are unacceptable in a
civilised society. These attitudes are further worrying because they promote the colonial saviour
narrative again (Spivak, 1999). The courts use these declarations of non-marriage to ‘save’ these
(mostly women) applicants from their forced marriages and the pressure they are placed under.
They are therefore racialised women saved from their racialised men and communities by the
white courts. There are already remedies in place for those forced into marriage and the very
recent case of NB v. MI (Capacity to Contract Marriage)
35
addresses this by clarifying that
marriages for which nullity decrees are time-barred can still be terminated by divorce. A fuller
discussion of this option and the annulment of forced marriages is beyond the scope of this article,
but the main point about the use of non-marriage as this colonial saviour device is important to
include here. Non-marriage is not only racialising but is racialised itself by association with these
other racialised categories of marriage. The ways it is used in the courts to demean the minoritised
marriage practices it is disproportionately associated with are orientalising and harmful to
minoritised communities.
8 Concluding thoughts
Non-marriage has existed in various forms in English law for centuries as a way to differentiate the
idealised Anglican Christian form of marriage from all others. This underpins legal responses to
minoritised communities and their marriage practices. I started with an introduction to the
background which displays how complicated and unnerving the current legal framework is. The
law requires couples to fulfil certain statutory formalities, but it is not even clear which formalities
lead to a binding marriage. Amidst this confusion, there is a tendency to forget the legacy on which
English matrimonial law is built: one which privileges Anglican Christianity and all of the colonial
baggage attached to it. Under the influence of coloniality, marriage law creates an orientalist
hierarchy which leaves minoritised marriage practices in an inferior position and much less likely
to be seen as marriages in the first place. From my analysis of the cases on non-marriage, I made
three thematic arguments. First, that the case law in this area has developed to answer the question
“What is an English marriage?” The answer to this is generally that a marriage fits with or has the
hallmarks of an Anglican Christian marriage ceremony. Even with the gradual distancing away
from the explicit discourses which highlight the Christian nature of a ceremony, the courts remain
committed to an ideal template which many minoritised practices fall outside of. Second, the
emphasis on the technical form of a ceremony compared to the intentions (or thoughts and
feelings) of the parties and thos e present obscures the presence of the judges’ own thoughts, views
and feelings which are racist and orientalist in the judgments. Finally, non-marriage is applied
across a spectrum ranging from playacting to forced marriages. These proposed situations where
non-marriage is relevant all relate to a ceremony and relationship being pretend or unacceptable
in some way. To include legitimate minoritised marriage practices which have been practised for
millennia in this category of marriage is orientalist and deeply insulting to the communities that
practise them.
35
[2021] EWHC 224 Fam.
594 Zainab Batul Naqvi
https://doi.org/10.1017/S1744552323000265 Published online by Cambridge University Press
The Law Commission’s recent suggestions to narrow the scope of non-qualifying ceremonies
seem sensible with the focus on the non-qualifying ceremony rather than marriage, but they do
little to address the endemic racism and orientalism in the concept of non-marriage. The damage
that non-marriage has done to erode the position of minoritised marriage practices remains
unrecognised. The limiting of its application to a flaw in the formal requirements around
preliminaries and capacity does not tackle the harmful stereotypes, discourses, and tropes that
non-marriage has been used to perpetuate. The question that has always been asked in this area is
what is an English marriage? Until the courts move away from that thinking and the colonial
priorities that this entails, we cannot move forwards with a nuanced understanding of the
direction that the legal framework needs to take. We should be asking how we can move forward
from these harmful underpinnings to the law and take it from there.
Competing interests. None.
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Cite this article: Naqvi ZB (2023). The racialising effects of non-marriage in English Law: A critical postcolonial analysis.
International Journal of Law in Context 19, 578–596. https://doi.org/10.1017/S1744552323000265
596 Zainab Batul Naqvi
https://doi.org/10.1017/S1744552323000265 Published online by Cambridge University Press
