The role of intention in non-marriage cases post Hudson v Leigh [2013] CFLQ 80

Keywords: Non-marriage - formalities - intention - validity

In 2009 Bodey J in the High Court delivered his judgment in the case of Hudson v Leigh (Status of Non-Marriage), subsequently endorsed by the Court of Appeal, in which the concept of non-existent marriage was confirmed as forming part of the law of England and Wales. There have been several significant decisions since Hudson v Leigh in which the court has had cause to explore further the boundaries of the concept of non-marriage: El Gamal v Al Maktoum; Galloway v Goldstein and most recently Dukali v Lamrani. The case-law reveals the court still grappling with how to delimit and define non-marriage and the weight to be attached to the oft-competing considerations. This commentary critically examines the judicial reasoning employed in these three decisions and considers the extent to which the parties' intentions play a role when the court is called upon to determine the status of questionable ceremonies. It is argued that recent case-law reflects a refinement of the principle of non-marriage; revealing an emergent hierarchy in the factors to be considered in non-marriage cases as laid down by Bodey J in Hudson v Leigh; a hierarchy which can also be seen at play in another recent decision, MA v JA.

The full version of this article appears in issue 1 of 2013 of Child and Family Law Quarterly.