Introduction

English law has developed a complex set of rules and regulations to determine what types of marriage ceremonies create the legal status of ‘marriage’. Failures to fulfil these legal requirements have led to confusing outcomes as courts grapple with the consequences of non-compliance. The current rules and regulations do not reflect the diverse ways in which members of Britain's multi-cultural, multi-ethnic, multi-religious and nonreligious society enters into marriages. Muslims in particular have been highlighted as a community who are increasingly undertaking marriage ceremonies that do not comply with the requirements of English law, resulting in Muslim couples being held to be parties to what is now termed a ‘non-qualifying ceremony’. It is proposed that Muslims themselves should be able to determine when and how they marry and the state's interest is protected by a post-ceremony registration system, not unlike the registration of a birth or death. A liberal state should not be regulating the ceremonial aspects of a marriage; rather its interest lies in recognizing a marriage and providing protection to its citizens against harm or other vulnerabilities. Such protection can be achieved without the policing of the marriage ceremony itself.

The ‘Muslim problem’

It has become increasingly recognized that within a diverse, multi-ethnic, multi-religious and multi-cultural society, members of that society will wish to enter into marriage ceremonies that reflect the cultural, religious and social habits of the communities with which they associate and interact (Law Commission, 2015). For most people, though not all, a marriage ceremony is a public proclamation of their relationship and individuals may wish to make this proclamation in a manner which is meaningful to them. English law has historically concentrated its energies on establishing formalities in order to regulate the steps up to and including the ceremony itself as a method for determining which marriages are granted the status of a legally recognized marriage. English law requires the parties to have taken specific steps prior to the marriage ceremony from which it can be ensured that they, among other things, were above minimum age requirements, not already validly married and not otherwise precluded from marrying each other.