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Dukali v Lamrani [2012] EWHC 1748 (Fam)

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  • No: FD11F00696

    Neutral Citation Number: [2012] EWHC 1748 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Thursday, 15 March 2012

    BEFORE:

    MR JUSTICE HOLMAN

    - - - - - -

    BETWEEN:

    ASMA DUKALI

    Applicant

    - and -

    MOHAMED LAMRANI

    Respondent

    -and

    HER MAJESTY'S ATTORNEY GENERAL

    Intervener

    - - - - - -

    Digital Transcript of Wordwave International, a Merrill Communications Company

    165 Fleet Street, 8th Floor, London, EC4A 2DY

    Tel No: 020 7421 4046 Fax No: 020 7422 6134

    Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com

    (Official Shorthand Writers to the Court)

    - - - - - -

    MR JOHN FOX (Instructed by Messrs Oliver Fisher and Ronald Fletcher) appeared on behalf of the Applicant

    MR PHILIP PERRINS (Instructed by David Du Pre) appeared on behalf of the Respondent

    MR BILAL RAWAT (MR WATSON FOR JUDGMENT) (Instructed by the Treasury Solicitor) appeared on behalf of the Attorney General

    - - - - -

    Judgment

    Thursday, 15 March 2012

    MR JUSTICE HOLMAN:

    The issue

    1. I will call Asma Dukali the wife and Mohamed Lamrani the husband. It is convenient to do so, although on any view they are not now married to each other and it begs the very question in issue, namely whether they ever were.

    2. This is an application by the wife pursuant to section 13 of the Matrimonial and Family Proceedings Act 1984 for leave to apply for financial relief under Part III of that Act. Section 12 of that Act provides as follows:

    "12(1) Where -

    (a) a marriage has been dissolved or annulled ... by means of judicial or other proceedings in an overseas country, and

    (b) the divorce, [or] annulment ... is entitled to be recognised as valid in England and Wales,

    either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act."

    3. There has been a divorce between these parties in Morocco. The sole issues are (i) whether the wife can establish that there had been between these parties a "marriage" within the meaning of that word where it appears in section 12(1)(a); and, if so, (ii) whether the Moroccan divorce is entitled to be recognised as valid in England and Wales as required by section 12(1)(b). If the wife can bring her case within the requirements of section 12, then it is accepted that all the other requirements for the grant of leave under section 13 of the Act are sufficiently satisfied in this case.

    4. In a sentence, the issue is whether what judges have recently labelled or characterised as a "non-marriage" under English law, so as to be outside the scope of an English suit for matrimonial relief under the Matrimonial Causes Act 1973, can nevertheless amount to a "marriage" for the purpose of financial relief under Part III of the 1984 Act.

    The facts and background

    5. Although both parties were present throughout the hearing and I offered to hear oral testimony, neither party nor their counsel asked that I should do so. There is, indeed, little (if any) disagreement as to the essential facts. Both parties are citizens of Morocco and both are of Moroccan descent and of the Muslim faith. The wife was, however, born in England and has always lived and been educated here. She has always also been of dual British citizenship. She is now aged 33. She is well educated and holds a degree in design studies from London Guildhall.

    6. The husband was born in Morocco. However, he moved to England with his parents when he was aged 7 and has lived and been educated here ever since. He has, at all material times, also been of dual British citizenship, which he acquired whilst at university. He is now aged 44. He is also well-educated and holds a degree in scientific computing from Southbank University.

    7. On 8 January 2002 the parties went through a Moroccan civil ceremony of marriage at the Moroccan Consulate in London. At that time the wife was aged 23 and the husband aged 33, so they were fully adult and mature graduates and no issue could arise as to capacity to marry. The marriage was not an arranged one and the parties married out of love after a courtship and a formal engagement. Family members and other witnesses were present at the ceremony. The ceremony was performed by a qualified Moroccan Udul or Adoul (a notary), not by an Imam, although the marriage certificate refers also to the blessings of Allah and the use of the Holy Book. There is a formal marriage certificate and that and an English translation are now at bundle pages C8 and 9. The ceremony was followed by two wedding parties in London and a honeymoon abroad when, as the husband put it in his statement, "our lives truly started together". There was, however, no compliance or purported compliance with any of the requirements of the English Marriage Acts 1949 to 1994.

    8. Later in 2002 a flat was purchased in the husband's sole name in West London as their joint home. I understand that it is now worth about £300,000 and there is no mortgage upon it. It is the principal, if not sole, significant asset. In January 2006, the parties' only child, Selma, was born. She is now aged 6. Both parties have always worked throughout their marriage.

    9. Very sadly, difficulties developed during the marriage. At paragraph 7 of his statement (now at bundle page C12) the husband said, "Our marriage was characterised by short periods of happiness, interspersed with more difficult times when we would stop communicating." For a period during 2009 the wife actually left the flat. Later she returned to live there and both parties still reside there now. However, they say that any cohabitation in a marital sense ended during 2009 and that they have been separated since then, albeit now still both residing in the same home. The effective duration of the marriage was, therefore, about 71/2 years.

    10. On 6 May 2010 the wife presented an English petition for divorce in the Principal Registry of the Family Division. That petition propounded the marriage in the Moroccan Consulate on 8 January 2002 and prayed for a divorce relying on alleged unreasonable behaviour. The Moroccan marriage certificate and an English translation of it were lodged with the court. On 27 August 2010 the husband filed an answer in which he admitted the ceremony of marriage, but alleged that it "did not create a marriage capable of recognition or dissolution under English law".

    11. In accordance with good practice, the wife's solicitors had sent to the husband a draft petition several months before it was actually presented in May 2010. It appears that meantime that had prompted the husband to commence, on 14 April 2010, a petition for divorce in a court of first instance in Larache in the Kingdom of Morocco. The petition was based "on the grounds of dissension". The wife was later served and engaged in the proceedings through a lawyer in Tangier. It is common ground between the parties that, whatever its status in England, there had been a valid Moroccan civil marriage between them which, within Morocco, was regarded as valid and subsisting. There was a final Moroccan civil divorce, which appears from a document now at bundle page D7 to have been finally perfected on 2 June 2011. It is not in issue that that divorce was obtained "by means of judicial proceedings" in Morocco within the meaning of section 12(1)(a) of the 1984 Act and that none of the discretionary grounds for non-recognition in section 51(3) of the Family Law Act 1986, based on inadequate service or participation or other deficiencies, apply. However, the Moroccan divorce only makes very modest financial provision indeed for the wife and no provision in relation to the flat or its value.

    12. The wife relies upon that divorce as triggering her right to apply for financial relief after an overseas divorce under Part III of the 1984 Act. The husband says that Part III is not triggered (a) because there was no marriage recognised in England; and (b) because, although he himself applied for and obtained the Moroccan divorce, it should not be recognised here.

    13. The Attorney General was given notice of these proceedings and has intervened in them. The Attorney General fully supports the position of the husband. The Attorney General submits, in summary, that public policy firmly requires maintaining a position that a ceremony or process which is conducted solely in England and Wales, but which is entirely outside the scope of the Marriage Act 1949, has no legal consequence as a marriage in England and Wales. He submits that Parliament has created a structured set of rules as to who can contract marriages in England and Wales and how such marriages should be conducted and registered. Many consequences may flow from marriage, both as between the parties and other family members and members of the public generally, and as between the parties and the State (e.g. taxation and entitlement to benefits). The Attorney General submits that those who only wish to participate in some religious ceremony or some other personal form of ceremony which has personal significance for them, are completely free to do so. But, he submits, those who wish to achieve the status and also any benefits from marriage, must do so in the ways and with the formalities that Parliament has prescribed.

    The parties' accounts

    14. Although I have now summarised the facts, I now record the parties' respective accounts in their own words in their statements. At paragraph 2 of her statement dated 23 December 2011, the wife says:

    "My contention is that the marriage is valid, that it is recognised as a civil marriage by the Moroccan government and should therefore be recognised as a civil marriage within this jurisdiction."

    15. Within paragraphs 5 to 8 of her statement, she continues:

    "5. We married at the Moroccan Consulate on the 8thJanuary 2002. The venue for the marriage was always agreed by me, [the husband] and both our parents and was intended to be a proper civil marriage in the fullest sense. I would not have agreed to the marriage if it had been a religious only marriage .... I can confirm that as far as either of our families were aware as was I and [the husband] that the marriage was a valid civil ceremony ...

    6. ... In relation to the venue, again our parents took this to be the natural venue in which the marriage was to be conducted as we were both dual nationals and endeavoured to ensure that any children of the marriage could also obtain dual nationality. If we had had an Islamic ceremony only, this would not have happened. The actual ceremony itself was conducted by an 'Adoul' (a notary) and not an Imam. My understanding was and still is that all marriages conducted at the Moroccan Consulate are civil marriages, governed by legislation and are fully recognised by English law. For this reason neither our parents nor I and [the husband] believed that it was necessary to take part in an English civil ceremony.

    7. ... In the entire time that we have been married, [the husband] has always referred to me as 'his wife' and it was never at any time mentioned by [the husband] that the marriage was only a religious one. For tax purposes, and other civil matters when completing child benefit forms etc and registering our child at the time of birth, etc [the husband] has never referred to me other than as his 'wife' in the fullest sense.

    8. I work as a Mental Health Advocate representing Arabic speaking women for the Al Hasaniya Moroccan Women's Centre in North Kensington and have done so since September 2002. I am aware through my own personal experiences with friends and family as well as my work, ceremonies conducted at the Moroccan Consulate are fully recognised in the UK as civil marriages and not religious ones. I have been involved in many cases where English courts have granted divorces and legal separations to couples with the exact same marriage certificate as mine. Furthermore through my own professional experiences, if and when I come across any cases whereby a couple have conducted an Islamic marriage at a mosque, they are advised to immediately conduct either an English civil ceremony or where both parties are Moroccan, to marry at the Consulate as a mosque/Islamic marriage in itself is not accepted and recognised as a marriage under Moroccan Family Law."

    16. The husband says in his statement dated 16 September 2011 at paragraph 4:

    "4. Our fathers between them suggested we should book an appointment at the Moroccan Consulate. Our parents were anxious for us to maintain our links to Morocco for practical reasons, so that any offspring of ours would be recognised as legitimate under Moroccan law and also qualify for Moroccan citizenship and for any inheritance rights under Moroccan law that might arise in the future. It was important to me, as well as my family, to have a marriage recognised within Islam. [The wife] and I attended the Moroccan Consulate in London with her father on 8 January 2002, where a ceremony was performed by a qualified Udul."

    17. At paragraphs 7 and 9 of his statement the husband says:

    "7. ... I received a letter from Ronald Fletcher & Co, London solicitors instructed by [the wife], saying that [the wife] wished to obtain a divorce and enclosing a draft divorce petition containing complaints about my behaviour towards [the wife]. I was very unhappy about the wording of this draft document ...

    8. I decided that if [the wife] was set on obtaining a divorce then I should make enquiries about a divorce recognised within Islam. I established that the Moroccan family court would have the power to grant a divorce ending the Moroccan marriage, because [the wife] and I are both Moroccan citizens ...

    9. In January 2010 I consulted London solicitors, David Du Pre & Co. In discussions with them, they questioned whether my marriage at the Moroccan Consulate was in fact valid under English civil law, and therefore capable of dissolution under English civil law. I had not thought about this previously. I made enquiries and established that, as at January 2010, no foreign embassy or consulate in the UK was licensed as a place to celebrate marriages under English law..."

    The position of the Moroccan Consulate

    18. There has been correspondence between the Moroccan Consulate in London and the solicitors for the wife. In a letter dated 31 October 2011 (now at bundle page C26) the Consul General wrote:

    "Moroccan marriages and divorces are not referred to as 'Islamic' ones. They are not a religious ceremony but legal acts governed by the Family Law where legal procedures are to be followed in both marriage and divorce.

    This law applies to all Moroccan nationals, living in Morocco or abroad.

    Marriages concluded in Moroccan Embassies or Consulates are valid and recognised by countries hosting the Moroccan diplomatic or consular representations (Vienna Convention on Consular Relations 1963)."

    19. In a letter dated 2 November 2011 (now at bundle page C27) the Consul General wrote:

    "1. The marriage of Ms Dukali and Mr Lamrani is in full accordance with the Moroccan Family Law which is governed by legislation and allows equal rights to women and men. Moroccan marriages are recognised by the UK and other European countries. Moroccan marriages are NOT conducted in Mosques and are NOT conducted by an Imam. If and when such marriages are undertaken in the UK by Moroccan nationals in Mosques, we do not recognise them and we ask that either they get married in an English registry office or at the Consulate (a diplomatic mission) in order for such union to be accepted and recognised as a marriage as stipulated by Moroccan Family Law.

    2. In our opinion and that of our legal department in Morocco, Moroccan marriages such as that conducted between Ms Dukali and Mr Lamrani is valid under English law..."

    20. More recently, in a letter dated 2 February 2012, now at bundle page F59, the Consul General wrote:

    "I regret to note that Mr Lamrani remains adamant to pursuing this argument and we have every intention of responding fully, as we feel the case to be of legal importance and significance to all our Moroccan nationals living in the UK who have contracted a Moroccan civil marriage as did Mr Lamrani and Ms Dukali."

    21. The Consul General further wrote on 6 February 2012 (now at bundle page 59A):

    "1. A marriage concluded in the Consulate General of Morocco in London is a legal act based on the Family Law and responds to legal aspects outlined in Moroccan laws. Laws that are not in conflict with British ones.

    2. The marriage contracted between Ms Dukali and Mr Lamrani is in full compliance and accordance with Moroccan Family Law...

    3. ...

    4. The Consulate General of Morocco in the UK operates according to the Vienna Convention..."

    22. As I understand it from these letters, it was the position of the Moroccan Consulate in 2002 and still is their position (at least as recently as last month) that, because of provisions of the Vienna Conventions on Diplomatic and Consular Relations, a Moroccan civil marriage conducted at the Consulate in London in full compliance and accordance with Moroccan family law is "valid under English law". It seems also from the tenor of the correspondence, as well as from what the wife says in passages quoted above, that a significant number of Moroccan citizens resident in the UK have, over a number of years, participated in similar ceremonies of marriage at the Consulate. (However I do not know how many of those people may also have gone through a ceremony at an English register office in full compliance with the requirements of the Marriage Acts.)

    23. It thus seems that, in 2002, both these parties were under the impression or belief that their ceremony of marriage was of legal effect in both Morocco and England, and that that belief was fully shared by the staff of the Consulate within which the marriage took place. It has, however, been established that the Moroccan Consulate in London is not, and never has been, registered or approved by the General Register Office or the local authority as a place or venue for a marriage and is not an approved or registered building under the Marriage Acts 1949 to 1994. Although the Moroccan Consulate rely on the Vienna Convention for their opinion and belief that the marriage is "valid under English law", it is now too firmly established to admit of any argument (and none was suggested or addressed to me) but that, for the purpose of marriage or divorce, the premises of a consulate are part of the territory of the receiving State and not of the sending State. This was firmly established by the case of Radwan v Radwan [1973] Fam 24 which has been invariably followed and applied without question ever since.

    24. In short, this was a marriage that was contracted wholly in England, even although within the premises of the Moroccan Consulate. No rule is more firmly established in this area of English private international law than that formal validity is governed by the law of the place where a marriage is contracted, viz in this case England.

    Was the marriage valid, void or a non-marriage under English law?

    25. In a series of cases which have all recently been heard, apparently coincidentally, by Bodey J, that judge has clearly identified (after erudite consideration of many earlier authorities) that under English law, a ceremony or event, which may have the characteristics or appearance of a marriage, may create a valid marriage, or a void marriage (that is, one which is capable of founding a decree of nullity under section 11 of the Matrimonial Causes Act 1973), or a "non-existent marriage" or simply "non-marriage"; see: Hudson v Leigh [2009] EWHC Fam 1305, [2009] 2 FLR 1129; Al-Saedy v Musawi (Presumption of Marriage) [2010] EWHC Fam 3293, [2011] 2 FLR 287; and El Gamal v Maktoum [2011] EWHC Fam B27.

    26. The position is now summarised at paragraphs 77 to 81 of Bodey J's judgment in El Gamal v Maktoum. At paragraph 81 Bodey J also quoted a passage from his judgment in Hudson v Leigh in which he had said that "Questionable ceremonies should I think be addressed on a case by case basis", taking account of a number of factors including whether the key participants, and especially the officiating official, believed, intended and understood that the ceremony would give rise to the status of lawful marriage under English law. But at paragraph 86 of his judgment in El Gamal v Maktoum he made clear that:

    "I have no doubt that intention is relevant to the status achieved or not achieved by a questionable ceremony, as being one of the many considerations which need to be taken into account. It is particularly relevant in the presumably unusual circumstances where the parties did not intend to create a valid marriage, or where they realised that for some reason they would not be able to do so. But the converse does not apply. It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nevertheless suffices if the participants hopefully intended, or believed, that the ceremony would create one."

    27. At paragraph 87, Bodey J concluded on the facts of that case that:

    " ...there exists nothing here in English law susceptible to a decree of nullity under S.11 Matrimonial Causes Act 1973. There was a wholesale failure to comply with the formal requirements of English law. This was not, as submitted, a void marriage but was, in shorthand, a 'non-marriage'."

    28. In the present case, Mr John Fox, who appears on behalf of the wife, has relied most heavily on the earlier authority of the Court of Appeal in Chief Adjudication Officer v Bath [2000] 1 FLR 8. In that case, the parties had gone through a Sikh marriage ceremony in a Sikh temple in London in 1956. They lived together as man and wife for 37 years until the husband died in 1994. The wife then claimed a State widow's pension but it was denied to her on the basis that there had been no valid marriage. The Court of Appeal held that she was indeed the widow. The actual decision and the reasoning of the three Lords Justices has to be considered with some care. Robert Walker LJ based his decision that there had been a valid marriage on the presumption from long cohabitation as man and wife which had not been displaced. At paragraph (7) of his judgment he identified "manifold non-compliance" with the provisions of the Marriage Act 1949 and said:

    "If in this case the husband and wife had been compelled by adverse circumstances to separate soon after the ceremony, so that no presumption arose from cohabitation, I feel real doubt whether they could have been regarded as lawfully married under English law, despite the logic of the argument based on the mental state required for a marriage to be void under s.49."

    29. However, on the facts of the case he concluded at paragraph (9) that:

    "But in this case it is unnecessary to go further into the issue of validity of an irregular marriage ceremony which is not followed by long cohabitation. Where there is an irregular ceremony which is 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. I agree with Evans LJ, for the reasons which he gives, that there is insufficient evidence to rebut the presumption in this case."

    30. Schiemann LJ gave no separate judgment but expressly stated that he preferred to rest his reasoning on the narrower grounds set out by Robert Walker LJ. Evans LJ also based his decision on the proposition that the presumption from long cohabitation had not been displaced, see paragraph (39) of his judgment where he said:

    "There is no evidence whether the celebrant was a duly authorised person under the Act, and it must certainly be presumed that he was. I would also be prepared to hold, notwithstanding the finding that the temple was not registered under the Act, that the evidence relied upon by the department was not sufficiently positive to displace a presumption that the building was registered. The letters from the current senior officers of the temple in its new location are not even the best evidence, which could and should be produced, in the form of the book, which there was a statutory obligation to keep. The applicant simply does not know, and her "admission" therefore is of no weight as evidence in support of the department's case."

    31. So all three Lords Justices based their decision on the presumption from long cohabitation. Evans LJ did, however, go further and base his decision also on a reading of section 49 of the Marriage Act 1949. That provides that, "If any persons knowingly and wilfully inter-marry under the provisions of this Part of this Act ...", then a range of defects or deficiencies are listed as paragraphs (a) to (g), "the marriage shall be void." This in turn ties in with section 11(a)(iii) of the Matrimonial Causes Act 1973, which provides that a marriage "shall be void" only on certain grounds, including that "the parties have inter-married in disregard of certain requirements as to the formation of marriage".

    32. At paragraph (32) of his judgment in Bath, Evans LJ pointed out that it would be remarkable if a marriage could be presumed from long cohabitation when there was no ceremony at all but could not be presumed when a bona fide ceremony failed to comply with all the requirements of the Act. He thus stated at paragraph (33):

    "There is no statutory provision that a marriage, otherwise carried out in proper form, by an authorised celebrant and at a place of worship eligible to be registered under the Act, is invalid merely on the ground that the building was not registered, for whatever reason."

    33. In my view, neither the basis on which all three Lords Justices decided Bath (the presumption) nor the alternative basis suggested by Evans LJ can avail the wife in the present case. The presumption requires "long cohabitation" or cohabitation "for a significant period" (Evans LJ at paragraph (31)), and Robert Walker LJ doubted whether it could apply if the parties had separated "soon after the ceremony" (see paragraph (7) of his judgment). No counsel has been able to show me any authority where the presumption has been applied after the parties have lived together as man and wife for a period anywhere near as short as seven or eight years. Whilst I firmly eschew any attempt to suggest how long parties must have lived together as man and wife before the presumption may arise, I consider that a longer period than seven or eight years must be required.

    34. Further, although when it does arise the presumption is a "strong" one, which is only displaced by "positive" and "weighty" evidence to the contrary, nevertheless it can be displaced by the evidence if it is sufficiently positive and strong. See Bath itself at paragraph (31); and the judgment of Hughes J in A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6 at paragraphs 35 and 36; and Bodey J in Al-Saedy v Musawi at paragraphs 60 to 72. At paragraph 72 Bodey J concluded that:

    "I find in any event that a respondent succeeds in rebutting the presumption of marriage (assuming no evidential basis for the possibility of there having been some covert ceremony, or something of that sort) if he or she can identify the only known ceremony or event which might have constituted a marriage and can show that it did not have that effect in English law. That is precisely the case here."

    35. The position in the present case is, in my view, exactly the same as that summarised in that passage at paragraph 72 in Al-Saedy. It is positively established, and indeed agreed, that there was only ever one ceremony or event, namely that at the consulate on 8 January 2002. If that was not itself effective as a valid or even a void marriage in English law, there is simply no room for applying the presumption.

    36. In my view, for the purpose of granting matrimonial relief under the Matrimonial Causes Act 1973, this marriage was neither valid nor void but was non-existent. It was not valid because there was manifold non-compliance with every requirement of the Marriage Acts as to notification, use of a registered or approved venue, form, authorisation of the officiant and subsequent registration. It was not void because, as Mr Bilal Rawat submitted on behalf of the Attorney General, it did not even purport to be a marriage under the provisions of the Marriage Acts. Section 49 of the Marriage Act 1949 provides that the marriage shall be void if the parties "knowingly and wilfully inter-marry under the provisions of this Part of this Act" in the absence or disregard of one or more of the matters listed in paragraphs (a) to (g). Clearly, section 11(a)(iii) of the Matrimonial Causes Act 1973 is a shorthand reference to section 49 of the 1949 Act. I agree with Mr Rawat that neither section 49 of the Marriage Act 1949 nor section 11 of the Matrimonial Causes Act 1973 are in point if the parties have not purported to inter-marry under the provisions of that Part of the 1949 Act at all.

    37. In my view, what Bodey J said in paragraph 87 of his judgment in El Gamal v Maktoum is directly in point. "There was a wholesale failure to comply with the formal requirements of English law. This was not ... a void marriage but was, in shorthand, a 'non-marriage'."

    38. In my judgment, accordingly, the wife could never have obtained English matrimonial relief, whether a divorce or a decree of nullity, nor consequent financial or ancillary relief.

    Can a marriage which is a "non-existent marriage" for the purpose of English matrimonial relief under the Matrimonial Causes Act 1973 nevertheless qualify as a marriage for the purpose of section 12 of the 1986 Act?

    39. There does not appear to be any authority on this question and certainly none has been cited to me. In paragraph (32) of his judgment in Bath (but being a part of the judgment with which the other two Lords Justices did not associate themselves) Evans LJ said:

    "... [Counsel's] submission assumes that if the place of worship where the ceremony takes place is not registered in accordance with the Act then the marriage is "invalid", or more precisely, that it does not count as a marriage for the purposes of the social security legislation regarding widows' pensions..." [My emphasis]

    40. In much the same way, it may be asked whether the "marriage" in this case, even if a non-marriage for the purpose of matrimonial relief under the Matrimonial Causes Act 1973, may nevertheless "count as a marriage for the purposes of" section 12 and Part III of the 1984 Act. There is no doubt that these parties intended their marriage to have legal consequences. Their marriage did actually have legal consequences, at any rate in Morocco. In the light of what she has said in her statement quoted above, it seems to me inconceivable that the wife (who had always lived in England and intended to continue to do so) would have limited their marriage to the ceremony in the consulate if she had foreseen for one moment that it would be of no legal effect in England. Of course, she may well have gone through that Moroccan ceremony (being Muslim and a citizen of Morocco), but she would surely also have required an English register officer ceremony in full compliance with the English Marriage Acts as well.

    41. Despite the sustained submissions of Mr Philip Perrins on behalf of the husband to the contrary, it seems to me that the only fair reading of the husband's statement (also quoted above) is that he, too, thought until recently that the marriage was of legal effect in England. By the time of the marriage he, too, was by then a British citizen who had lived in England for many years and intended to continue to do so. He says in paragraph 4 of his statement (quoted above) that it was important to maintain their links with Morocco for practical reasons, including legitimacy of any children and inheritance rights under Moroccan law. It was also important to him and his family to have a marriage recognised within Islam. I fully accept all of that, but it was surely no less important that any children should be recognised as legitimate in England, where they expected to continue to live, and to have inheritance rights under English law as well. When the husband said in paragraph 9 of his statement, also quoted above, that "I had not thought about this previously" that surely refers in its context to not having thought about any "question" whether the marriage was in fact valid under English law.

    42. Why, then, should the marriage, albeit a non-marriage here, not "count" as a marriage for the purposes of section 12 and Part III of the 1984 Act? Parliament has not defined what it means by the word "marriage" where it appears in section 12 or in Part III generally. It may be expected that many, if not most, of the marriages which are relied upon for the purposes of applications under Part III are marriages contracted abroad, often with far, far less formality than the formal and very well evidenced marriage in the present case.

    43. If the parties had travelled to Morocco and done there exactly what they did at the consulate in London, then their marriage would unquestionably have been valid not only there but here. Further, section 12 refers not only to divorce but to annulment, and accordingly relief may be obtainable under Part III of the 1984 Act, not only where a valid marriage has been dissolved by an overseas divorce, but also where an irregular or invalid marriage has been annulled. On the facts of the present case, however, the marriage was fully valid in Morocco and the process was one of divorce, not annulment.

    44. Despite all these points and considerations, however, I have reached the firm view, submitted not only on behalf of the husband but also by counsel on behalf of the intervening Attorney General, that the word "marriage" in section 12 and Part III generally of the 1984 Act must mean, and can only mean, a marriage which is, or under English law is recognised as, a valid or at least a void marriage. That is the natural meaning and scope of the word "marriage" when used in this context. Far from needing to use words of limitation or exclusion to limit "marriage" to a valid or void marriage, Parliament would have needed to use express words of inclusion if it had intended to enlarge and include within the word "marriage" even what is characterised here as a non-marriage. That is particularly so in the case of a marriage which was actually contracted in England. If the marriage relied upon is a ceremony which took place here but which was so irregular and altogether outside the scope of the Marriage Acts as not to be a marriage at all, not even a void one, then in my view it would require clear words from Parliament before it could fall within the scope of section 12 and Part III.

    45. I am fortified in this view by the mischief at which Part III of the 1984 Act was aimed. In Agbage v Agbage [2010] UKSC 13, [2010] 1 FLR 1813, there was no issue as to the validity of the foreign Nigerian marriage. However, in paragraphs 4 to 7 of the judgment of the whole court, given by Lord Collins of Mapesbury, the Supreme Court described the background to Part III of the 1984 Act. Lord Collins referred to the liberality of the rules relating to the recognition of foreign divorces, and continued at paragraph 5:

    "As a result the parties were regarded as no longer married, and the court was not able to make an order in her favour for financial relief..."

    46. As that passage indicates, and as has always been my own understanding, the mischief is a situation in which the English court could, on a sufficiently timely application to it, have regarded or treated the parties as married and could have made a financial order, but for the earlier interposition of a foreign divorce or annulment. On the facts of the present case, as I have held, the English court could never have granted a decree, whether of divorce of nullity, and could never have granted discretionary financial relief under the Matrimonial Causes Act 1973.

    47. I have sympathy for the plight of the wife. I cannot, of course, know the state of any privileged negotiation between the parties, but her husband is now apparently seeking to avoid any fair distribution of their home and any other assets by taking advantage of a situation of which he only became aware when he consulted solicitors in January 2010.

    48. However, for the reasons I have given, I am of the firm and clear view that the wife cannot avail herself of an application under section 12 and Part III of the 1984 Act. She is right outside its scope.

    Recognition of the Moroccan divorce

    49. This conclusion renders it not strictly necessary for me to consider the second of the two issues identified in paragraph 3 above, namely whether the Moroccan divorce is itself entitled to be recognised as valid in England and Wales, as required by section 12(1)(b). However, since counsel for the spouses dwelt at some length on recognition of the divorce, I will now refer to it.

    50. Recognition is now the subject of a detailed and exhaustive statutory code in Part II of the Family Law Act 1986 and specifically sections 45 to 54 of that Act. For the purposes of the present case, it is only necessary to reproduce section 51(2) which, so far as is material, provides that:

    "51(2) ... recognition of the validity of -

    (a) ...

    (b) an overseas divorce ...

    may be refused ... if the divorce ... was granted or obtained at a time when ... there was no subsisting marriage between the parties."

    51. It should be noted at once that the subsection employs the word "may" ("may be refused") and accordingly confers a discretion. Neither in section 52 nor elsewhere in the Act is there any test, nor further guidance or steer as to the circumstances in which the court should, or might, exercise its discretion to refuse recognition. The previous statutory provision under section 8(1) of the Recognition of Divorces and Legal Separations Act 1971, which the 1986 Act replaced, made non-subsistence of the marriage at the time of the foreign divorce a mandatory rather than a discretionary ground for the refusal of recognition.

    52. Mr Perrins has set out at considerable length, in his position statement/skeleton argument for this hearing, parts of the Law Commission Report No.137 dated September 1984, which preceded the legislative changes in 1986, and also parts of the explanatory note to the proposed draft legislation. I have not, however, found that that provides any help as to how the discretion which has now been given should be exercised. The only real reason advanced as to why I should exercise a discretion under section 51(2) to refuse recognition of the divorce in this case is that, in the eyes of English law, there was at the time no subsisting marriage between the parties. If, however, I were to refuse recognition for that reason, or on that basis simpliciter, I would risk making the gateway for exercise of the discretion into a decisive reason for exercising the discretion; or, in effect, still treating as decisive that which Parliament has now said should be discretionary.

    53. At paragraph 38 of his position statement/skeleton argument, Mr Perrins identified and listed a large number of reasons or factors why he submits recognition should be refused. Most of them, however, boil down to his reason for saying (as I have already accepted and held) that there was never any marriage between these parties. In these circumstances it seems to me that the true issue is whether there was ever any marriage between these parties for the purpose of section 12 and Part III at all; and not whether such a marriage was still subsisting at a certain time, namely the date of the Moroccan divorce. I prefer not to state any view as to discretionary refusal of recognition of the divorce under section 51(2) of the 1986 Act, and I consider that the present case is not an appropriate case for the court to express a view as to the circumstances in which recognition should or should not be refused under that subsection.

    Conclusion

    54. I refuse to grant leave to the wife to apply for an order for financial relief under Part III of the 1984 Act on the ground that she cannot propound or demonstrate any marriage to which section 12 of that Act applies. I repeat my sympathy for the plight of the wife, but I cannot act out of mercy and must apply the law as I believe it to be.

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Published: 04/06/2012

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