MARRIAGE—FOREIGN MARRIAGE—VALIDITY

Court of Appeal, Civil Division

Thorpe, Wall and Hallett LJJ

19 March 2008

The combined effect of s 12 of the Matrimonial Causes Act 1973 (MCA 1973) and ss 55 to 58 of the Family Law Act 1986 (FLA 1986) is to ensure that the only route to a judicial conclusion that a marriage was void at its inception is a petition for nullity. An alternative route, such as an application for a declaration, is proscribed.

Alison BallQCand Andrew Bagchi for C.

Jan Luba QC and Stephen Knafler for C’s parents.

Alex Vardan QC for the local authority.

C was born in the UK in 1981. He was severely handicapped, to the extent that in all areas of his development he was below that of an average three-year-old. He required very considerable support and could not be left alone without risk.

His family were of Bangladeshi origin. Although he lacked capacity to marry under English law, marriage was not precluded in Bangladesh. The local authority and C’s parents were unable to agree that he should never marry. Accordingly, in April 2007 the authority applied under the inherent jurisdiction of the High Court for a declaration as to the capacity of C to marry. The response of the parents was to the effect that C had been married in a Muslim ceremony which took place in August 2006 by telephone link between Britain and Bangladesh, where the bride, K, lived. It was common ground that the marriage was celebrated in Bangladesh.

The judge declared that the “marriage” was not valid under English law. He rejected the submission made on behalf of the parents that circumstances such as those which arose in the instant case had been expressly provided for in s 12(c) and (d) of MCA 1973, and that the marriage was, accordingly, voidable, rather than void. Further, he refused recognition of the marriage on the ground of public policy. The parents appealed.

LORD JUSTICE THORPE:

The essential submission advanced by the parents was that Parliament had expressly provided for circumstances, such the instant case in s 12(c) and (d) of MCA 1973, which provided:

“(c) that either the party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise; (d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of [the Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage.”

That was part and parcel of a categorisation of marriages that might be annulled into those void ab initio (s 11) and those merely voidable (s 12). The previous law was clear that a voidable marriage was a valid marriage unless and until annulled. That the Nullity of Marriage Act 1971 had intentionally brought about a fundamental shift in the law relating to marriages vitiated by an absence of consent was illustrated by Roberts, Re, Roberts v Roberts [1978] 3 All ER 225.

The judge below had rejected that submission by citing Sheffield City Council v E & Another [2005] Fam 326, [2005] All ER (D) 192 (Jan). His lordship held that the judge had wrongly rejected the parents’ submissions founded on of MCA 1973, s 12(c). The judgment in Roberts was clear and binding: the marriage was voidable, not void. His lordship was reinforced in that view by a relevant provision that had not been drawn to the attention of the judge, namely FLA 1986, ss 55–58.

Those provisions strongly supported the parents’ analysis. Section 55(1) itemised the declarations as to marital status which the court might make. The first was “a declaration that the marriage was at its inception a valid marriage”. What was significantly absent was a sub-paragraph permitting a declaration that the marriage was at its inception an invalid marriage.

That omission was very deliberate as could be seen from s 58(5) which stated:“No declaration may be made by any court, whether under this part or otherwise: (i) that a marriage was at its inception void.” The following sub-section provided that: “Nothing in this section shall affect the powers of any court to grant a decree of nullity of marriage.” Thus the combined effect of those provisions was to ensure that the only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. An alternative route, namely an application for a declaration, was plainly proscribed.

Antenuptial domicile

The parents attacked the judge’s other reasoning. They submitted that r 67 of Dicey and Morris was too widely stated. Rule 67 provided that as a general rule, capacity to marry was governed by the law of each party’s antenuptial domicile. His lordship rejected that argument and held that the rule was of general application.

There was, however, authority to the effect that there were alternative bases for the recognition of a foreign marriage that would not be recognised on the application of the dual domicile rule, but nothing that assisted the parents’ argument. His lordship supported the judge’s reference to public policy considerations. Not every marriage valid according to the law of some friendly foreign state was entitled to recognition in England (see Cheni (otherwise Rodriguez) v Cheni [1965] Pt 85, [1962] 3 All ER 873).

In the instant case it was common ground that C lacked the capacity to marry in English law. It was simply inconceivable that he could be lawfully married in the UK. There was much expert evidence to suggest that the marriage which his parents had arranged for him was potentially highly injurious. The telephonic marriage was potentially if not abusive of C. It was the duty of the court to protect C from that potential abuse. The refusal of recognition in the instant case was justified even if not precedented.

Accordingly, in place of the existing declaration his lordship would grant a declaration that the marriage, valid according to the law of Bangladesh, was not recognised as a valid marriage in England. Lord Justice Wall and Lady Hale delivered concurring judgments.