Presumed married? With Professor Rebecca Probert

Presumed married? Last week the newspapers reported the case of the billionaire property developer seeking to establish that he was never married to the woman he had held out as his wife for 14 years. Counsel for the wife argued that she was ‘entitled to rely on the presumption of marriage and the facts that the parties presented to the world for the totality of the period between 2002 and their separation.’ But how should the court deal with disputes as to whether a marriage ceremony complied with the requirements laid down by law, or even as to whether it took place at all? The conventional answer is that there is a presumption in favour of the validity of a marriage: if there is evidence of a ceremony, it will be presumed that that ceremony was duly performed, while in the absence of direct evidence of any ceremony, the fact that a couple have lived together and been reputed to be married will raise a presumption that they have in fact gone through a valid ceremony of marriage at some point. Yet both the academic literature and judicial decisions display considerable confusion as to precisely what is being presumed, when, and why. In order to chart a route through what has been described as ‘an impenetrable morass’ of case-law, it is necessary to examine the way in which these presumptions have evolved. In the case law of the eighteenth and early nineteenth centuries there was no single presumption in favour of marriage but rather a range of different approaches depending on the context of the case. Cohabitation and reputation might provide a defence to a suit for jactitation, confirmation of the marriage in a suit for restitution of conjugal rights, or a reason for caution in annulling a marriage. Evidence that long-deceased parties had lived together and been reputed to be married would be regarded as good evidence that there had been a ceremony for the purposes of establishing a right to administration of an estate, but would have to be weighed against any competing evidence. In the common law courts cohabitation and reputation would be accepted as sufficient evidence of a marriage for their purposes, without impinging on the jurisdiction of the ecclesiastical courts to decide what was and was not valid. In the early years of the nineteenth century these different strands became entwined as jurisdiction over the validity of marriages passed from the ecclesiastical courts to the common law courts and a more rigid doctrine of precedent emerged. The presumption began to be stated in more positive terms, and the House of Lords in Piers v Piers held that it could only be rebutted by clear and positive evidence. It began to be taken for granted that there was a rule that cohabitation and reputation gave rise to a presumption in favour of marriage, and in a number of cases courts seem to have attached more weight to the desirability of the marriage having taken place than to the plausibility of this explanation. During the twentieth century there was relatively little need to invoke the presumption, but it was rediscovered in CAO v Bath in order to confer recognition on a long-standing union where it was unclear whether the requisite formalities had been observed. So the presumption has been used for a variety of different purposes at different times, but what should its role be in the very different conditions of the twenty-first century? Should it merely be an evidential starting point, to be rebutted by clear evidence that there was no marriage, or that the only ceremony did not constitute a legally binding ceremony? Or should it be deployed to prevent individuals disclaiming their marriage and the obligations that go with marital status?