Tuesday Law Report: Widow could rely on presumption of marriage

9 November 1999

Chief Adjudication Officer v Bath

Court of Appeal (Lord Justice Evans, Lord Justice Schiemann and Lord Justice Robert Walker) 22 October 1999

WHERE THERE had been manifold non-compliance with the provisions of the Marriage Act 1949 in a Sikh marriage ceremony, the wife was none the less able to claim a widow's pension after her husband's death in reliance on the presumption of marriage from long cohabitation.

The Court of Appeal dismissed the appeal of the Chief Adjudication Officer against the decision of a social security commissioner that the respondent was entitled to a widow's pension.

The respondent, now aged 59, had gone through a Sikh marriage ceremony in a Sikh temple in 1956 when she was aged 16. She and her husband, then aged 19, had recently arrived in the United Kingdom, and were unfamiliar with the English language and with English laws and customs. They had lived together as man and wife for 37 years until the husband's death in 1994, had had two sons, and had built up a successful business. The husband had paid income tax and social security contributions on the basis, which had never been queried, that he was a married man.

When he died, the respondent applied for a widow's pension under section 38 of the Social Security and Benefits Act 1992. Her application was refused on the ground that she was not a widow because there was no evidence of a valid marriage ceremony in accordance with the Marriage Act 1949.

The respondent appealed to the Social Security Appeal Tribunal, which, whilst sympathising with her predicament, dismissed the appeal on the ground that the ceremony could not be accepted as a valid marriage because it had been established that it had taken place in a Sikh temple which was not registered for performing marriages, and had not been registered in a Register Office.

The respondent appealed to a Social Security Commissioner, who allowed the appeal, holding that the marriage had been validated by the common law presumption of marriage from long cohabitation. The Chief Adjudication Officer appealed.

Richard McManus QC (Solicitor to the Department of Social Security) for the appellant; the respondent did not appear and was not represented.

Lord Justice Robert Walker said that apart from the presumption of marriage arising from long cohabitation, the law as to the validity of marriages was now wholly statutory, and contained in the 1949 Act.

In section 49 it stated expressly that a marriage was void if the parties to it "knowingly and wilfully intermarry" in contravention of specified requirements.

The respondent and her husband had intended to get married and had not intended to break the law in any way. They did not therefore come within the scope of section 49, and there was no other statutory provision which would expressly have rendered their marriage void.

Notwithstanding that, there had nevertheless been a manifold non-compliance with the provisions of Part III of the Act: there had been no notice of marriage under section 27; no declaration under section 28; no entry in the marriage notice book under section 31, no certificate under section 32, no registered building under section 41, and no registrar or authorised person present under section 44.

If the respondent and her husband had been compelled by adverse circumstances to separate soon after the ceremony, it was doubtful whether they could have been regarded as lawfully married under English law, despite the logic of the argument based on the mental state required to render a marriage void under section 49.

However, where there was an irregular marriage ceremony which was followed by long cohabitation, it would be contrary to the general policy of the law to refuse to extend to the parties the benefit of a presumption which would apply to them if there were no evidence of any ceremony at all. In the present case there was insufficient evidence to rebut the presumption, and accordingly the decision of the Social Security Commissioner was correct.