Lord Justice McFarlane :
- This appeal concerns the validity of a marriage conducted in Syria in l999. The issue arose only after Professor Khaled Hayatleh ("the husband") petitioned for divorce on 8th February 2013 and his wife, Mrs Reem Mofdy ("the wife") issued a cross-prayer for divorce two months later. It was not until 3rd June 2013 that the adequacy of the paperwork establishing the validity of the marriage was first questioned by District Judge Gatter. Thereafter the divorce proceedings have been in abeyance whilst the parties and then the court have investigated the question of whether or not the parties were validly married.
- The issue was determined by His Honour Judge Tolson QC sitting at the Oxford Family Court on 27th May 2015. He held that the Syrian marriage was valid and that it was therefore open to the parties to pursue divorce proceedings in the United Kingdom. It is against that outcome that the husband now appeals.
The factual background
- The factual background can be shortly stated and is largely agreed between the parties.
- On 25th February l999 a religious marriage took place in Syria between the wife, who was present, and the husband, who was not. The husband was then living in England and his place was taken, as proxy, at this religious ceremony by his brother. This proxy procedure was, as the judge found, entirely sufficient for the religious purposes of that ceremony. The marriage was an arranged one and, although the couple had not met for many years (having been childhood acquaintances) all parties accepted, and the judge had no doubt, that "the marriage ceremony was intended as a binding and valid ceremony according to Syrian law".
- On 28th April 1999 the Third Religious Court in Homs acting "in the name of The Arab People in Syria" (a reference to Palestinians resident in Syria which is the appropriate classification for this couple) determined the following two matters (as set out in the official English translation):
"1. To confirm the two claimants unofficial marriage that occurred in Homs on Feb 25 l999 on the basis of bridal money amounting to 50 Syrian pounds paid in advance and 300,000 pounds deferred;
2. That the official registration of the marriage be conditioned to the presentation of the marriage permit issued by The Military Service Department, or the realisation of an infant."
- Thereafter the husband and wife both travelled to Jordan in order to spend time together and to commence attempts to obtain entry clearance for the wife to join the husband in England. In particular on 28th May 1999 the husband wrote to his English MP in the following terms:
"Also, I enclose a copy of the fax that I have sent to the British Embassy in Jordan, where both my fiancée Reem Mofdy and I can travel and meet in the Embassy to provide new evidence that we have been in regular contact recently and are genuinely a couple, already married according to both Islamic and Syrian laws."
In his judgment, HHJ Tolson placed particular emphasis on the last nine words of that statement by the husband.
- The attempt to obtain entry clearance for the wife to the United Kingdom was successful. Shortly after her arrival the husband threw a party or celebration, which is devoid of direct legal or religious significance, to introduce his "wife" to his friends and colleagues. Thereafter the couple settled down to family life together and on 1st August 2000 their only child, a daughter, was born.
- On 11th July 2003 the wife became a British citizen by naturalisation. Thereafter, as the judge found, "they continued to live as man and wife for the next decade until the end of their relationship with the present divorce proceedings. There was in the whole of that time no suggestion that they were anything other than a properly married couple".
- During the course of her evidence before the judge the wife suggested that there were various occasions when discussions had taken place during which she had enquired of the husband whether there were any formalities which remained to be complied with in terms of their marriage in Syria, and she was assured that there were not. The judge, however, was not persuaded as to the credibility of that particular piece of evidence and stated that he was "not convinced that these discussions in fact ever took place".
- In the lead up to the hearing further investigations were undertaken in Syria resulting in two different and apparently conflicting records of the civil status of these parties. The first, dated 10th July 2014 and referred to in the judgment as 'D5', is in the form of a translated certificate from the Syrian Arab Republic Ministry of Labour and Social Affairs (General Board of Arab Palestinian refugees) and purports to be an "individual census record abstract of Arab Palestinians". The document names the husband and the wife, together with their respective dates and places of birth. It describes them as "husband" and "wife" and gives their marital status as "married". The entry relates to a "Family Card Number" given as "146476". The second document dated 8th February 2015 ['D19'], under the same named government agency, deals solely with the husband and gives his marital status as "single". That document relates to Family Card Number 16881. There is a further document, again issued by the same government agency, dated 10th February 2015 which contains the details of the husband's parents and their twelve children. This record also relates to Family Card Number 16881 and, again, the marital status of the husband is entered as "single".
Validity of marriage: the legal context
- It is well established law and common ground between the parties that the validity of a marriage, wherever in the world it is celebrated, is determined by the lex loci celebrationis (the law of the place where it was celebrated), even where that location is not governed by the law of the domicile of the parties. It follows that in the present case, where the only purported ceremony of marriage took place in Syria, the validity of this marriage must be determined in accordance with Syrian law.
Expert evidence
- The court had the benefit of receiving three reports together with oral evidence from a jointly instructed expert, Dr Anas Bao, who is a specialist in international law, and, in particular, the law of Syria. Analysis of Dr Bao's evidence requires some care partly as a result of the risk of some inevitable loss of precise meaning during the process of translation and partly because, it is suggested, his evidence changed during the course of his various contributions to the case.
- In his first report, dated 12th September 2014, Dr Bao advised that it is "the true contract marriage" that makes Syrian marriages valid. In relation to the civil registration of a religious marriage he advised:
"For marriage registration in the civil status records, a childbirth leads to marriage registration if the marriage contract is not registered under order of the judge pending a marriage licence is presented a child is born."(sic)
In reply to a question "Please confirm if this marriage is valid in Syria or not?" Dr Bao gave the following reply:
"A marriage between spouses Lawyer Khaled Hayatleh and Mrs Rim Almofdi, is valid according to the provisions of Syrian laws."
The reason that he gave for that opinion was that the Personal Status Court in Homs had verified the authenticity of the marriage. Further, relying on the certificate issued by the Ministry of Labour and Social Affairs on 10th July 2014, Dr Bao advised that:
"It can be deduced that such marriage was registered with the competent authority in Syria. Marriage was registered pursuant to the childbirth (name) on 1/8/2000. The documents were sent from the Personal Status Court to that authority for marriage registration after the childbirth. The documents do not indicate who and when registration was made."
In response to a request to raise any other matter that might be relevant to the court's determination, Dr Bao concluded his first report as follows:
"Some worthwhile mentioning remarks in this connection that postponement of marriage registration with the civil status records because the recruitment license is not presented does not prejudice the essence of the contract where the effects of marriage contract remains valid and effective."
- In his second report, dated 10th November 2014 Dr Bao was asked "Is the marriage only valid (as in properly registered marriage with the relevant civil authorities) as regards the Syrian civil code after the registration?" His reply was:
"The Syrian law requires that the marriage shall be registered in the Civil Register in order to be [deemed] valid, which is for regulatory and administrative purposes…Nevertheless, unregistered marriage still has its full and complete Sharia effects, and the implication stipulated in Islamic Shariah Law as per the Syrian Law."
Two authorities are then given for the following separate statements:
"The formalities that do not affect the essence of the contract but impede the registration of the marriage does not deprive the wife of her right in the consequent Shariah rights."
"The wife may claim her marital rights and effects of the marriage even if it is not registered."
Dr Bao repeated his opinion that the documents produced from Syria showed that the marriage had been registered with the competent civil authorities.
- Dr Bao's opinion as to valid registration, however, changed by the time of his third report. By then it had been established that the registration certificate dated 10th July 2014 had been obtained by the wife's father. Dr Bao advised that it was insufficient simply for the father to attend at the registration office and what was needed was a further "new court decision to be passed" confirming that the condition precedent on registration, namely, in this case, the birth of the child, had been satisfied. He lists the various documents that would be required and then concludes as follows:
"As no new exhibit was attached confirming the existence of the above mentioned documents; whereas if Mrs Mofdi cannot provide evidence of the facilitation of the aforementioned it can be confirmed that the appropriate legal procedures and the applicable practices for the registration of marriage had not been fulfilled."
- As was almost inevitable given the content of his three written reports, Dr Bao was called to give oral evidence, a transcript of which has been available to this court. The following extracts are of particular relevance.
- Dr Bao was asked by counsel for the husband "if a religious marriage is not registered afterwards in the civil courts, is it, in Syrian law, a fully recognised marriage or has it got to be registered civilly to make it a fully marriage?" Dr Bao replied:
"Marriage in Syria is considered to be valid when it is done according to the Sharia law, but to obtain the consequences of the fruits of this marriage and to control the marital relationship, the law says that the marriage must be registered in the civil register."
The judge then asked "What effect does civil registration have in Syria?" to which Dr Bao replied:
"Inheritance, confirming the kinship, adoption; everything that is related to a person's status".
- Somewhat confusingly, Dr Bao went on, a short time later, to comment upon the decision of the court in Homs on 28th April 1999 about which he said:
"the judge will issue, as we have seen [reference to court decision], and takes a decision that the marriage is valid. But for binding's sake, it makes it binding on the birth of a child or the obtaining of the husband to the military, because under Syrian law a man cannot get married until he gets certification from the Military Service Department."
Later Dr Bao described the registration as being "suspended" pending the satisfaction of one or other of the two conditions. Where, as here, there is the birth of a child, it is necessary for the parties to the return to the court in order to obtain a new decision which is then communicated to the civil registry.
The judgment
- The parties and the judge were in agreement that "the real issue in this case was whether the ceremony of marriage, which it is common ground the parties went through, was converted by a registration into a binding civil marriage".
- The judge summarised Dr Bao's evidence on this point as follows:
"In the present case the question is rather whether such registration took place in the first place, it being clear on the evidence of Dr Bao that if it did not, then in the eyes of Syrian law, the marriage was of no effect, other than religious. All matters of personal status, Dr Bao told me, depended upon the civil registration of the marriage."
- The judge went on to describe his approach to the evidence in the case and the relevance, as he saw it, of the English law presumption of marriage from cohabitation and reputation, and at paragraph 7 the judge said:
"The question then for me is one of evidence, and it is to be resolved on the balance of probabilities, although I believe I am entitled to rely upon the presumption from cohabitation and reputation as formulated at paragraph 7.11 of Rayden and Jackson on Divorce:
'Where a man and woman have cohabited for such a length of time and in such circumstances as to acquire the reputation of being man and wife, a lawful marriage between them will be presumed, though there may no positive evidence of any marriage having taken place, particularly where the relevant facts have occurred outside the jurisdiction. This presumption can be rebutted only by strong and weighty evidence to the contrary.'"
- Having summarised the wife's contention in favour of the marriage, the judge described his approach to the husband's evidence at paragraphs 15 to 18 as follows:
"15. That is the state of play in terms of the evidence before me. I have to determine on the basis of that evidence whether this marriage was ever registered according to the requirements of Syrian law. Mrs Mofdy contends that it was. She had been assured of as much by her husband. She believes he must have registered the marriage, if not earlier then certainly during the visit to Syria in 2007 and she contends that the marriage was entirely valid and she is a wife in the full sense of the word.
16. Professor Hayatleh contends to the contrary. In my judgment the question arises as to the extent to which he should be permitted to do so within these proceedings because it is plain not just from the exchange of documents with the UK authorities to which I have made reference, but from many other actions over the years as well that he has continually and consistently asserted in words and conduct the validity of his English marriage. This is conduct and words upon which Mrs Mofdy has plainly relied, as [wife's counsel] forcefully submits, not least by agreeing to be married in the first place with all that that entails, but also in an innumerable number of ways over the years, perhaps culminating with her own cross-prayer for divorce based upon the assertions contained in the original petition brought by her husband. My thinking on investigating the state of affairs was that it would now be unconscionable to permit Professor Hayatleh to assert through his own evidence that the marriage was not valid.
17. Based upon my concerns voiced as the case developed we have investigated the status of the law of estoppel on issues of this kind and in particular, the validity of marriage. I have been referred by [husband's counsel] not just to Lord Hardwicke's Act from the 18th century, but to Joseph Jackson QC's book on the law relating to the formation and annulment of marriage which I think goes back even before Mr Jackson's elevation to Silk according to [wife's counsel], to l951. However, I do not claim to have conducted a full investigation into this area of the law.
18. I am left in a position where I do not believe I can attach any significant weight to the assertions made by Professor Hayatleh because they are so starkly in conflict with his words and actions over the years. I am tempted to elevate this to the level of an evidential estoppel, but it makes little difference to the outcome of the case. What I take from the evidence of the Professor in terms of the assessment which I have to make is that he acted for 14 years consistently in the belief that he was fully married in the eyes of Syrian and English law. Again, I need refer not further than to the exchange with the United Kingdom authorities."
- The judge then turned to his conclusions at paragraphs 19 – 22
19. I wish to emphasise that this is not a case in which either party may now be putting up some kind of sham marriage in an attempt to, for example, obtain the right to live in the United Kingdom. That is not the flavour of the case at all. There is no doubt in this case but that the parties went through a religious form of marriage; there is no doubt but that they complied with the only substantive conditions which would have been relevant under Syrian law; and whether they did so or not, they would at any time have been able to apply for the simple formality of the registration of their marriage.
20. This brings me to the central issue. Was the marriage registered? It seems to me that there is not just the presumption which I have mentioned, but a strong body of evidence pointing to the full validity of the marriage. There are the actions of the professor. There are the contentions of Mrs Mofdy. What there is not is a full set of documentary evidence from Syria, and this is at the heart of Miss Rogers' [husband's counsel] contentions. Her case is that there is no second religious court judgment from Syria which one would have expected as a step on the road to civil registration. There is no marriage certificate, and her contention is that whatever the state of play in Syria in 2014 and 2015, such a certificate would have been obtainable. She lays considerable emphasis on the absence of a family registration book which is a document which can be obtained following the civil registration of a marriage. Mr Kent [wife's counsel], on the last point, cross- examined effectively and demonstrated that such a book had never in fact been applied for, there essentially being no need with both parties resident in the United Kingdom.
21. What I am left with in terms of the documentation is two positive pieces of information: the aforementioned [certificates: see paragraph 10 above] D5 and D19. They are in conflict one with the other. If either one held sway then it might determine the case definitively one way or the other, but it seems to me that as there are two conflicting documents of apparently equal weight they cannot affect the balance of the case. I am left to begin with the presumption that I have mentioned which is reinforced by the evidence over the years, the conduct and assertion of the parties in particular.
22. Accordingly, I hold that this marriage was validly registered in Syria and that the obtaining of a petition of a divorce is open to the parties in the United Kingdom."
The appellant's case
- The appeal on behalf of the husband was presented with force and clarity by Nick Goodwin QC, who did not appear below. In summary the appellant's case is based on the following submissions:
a) The key task for the judge was to determine, as a matter of fact, whether the marriage had been registered in order to become a valid marriage recognised under Syrian law;
b) Given the absence of evidence of registration, the judge was wrong to find as a fact that the marriage had been properly registered so as to create a binding civil marriage recognised in Syrian law;
c) The judge was wrong to place any weight upon letters written by the husband in l999 at a time when, under Syrian law, there could be no valid civil marriage in the absence of the birth of a child;
d) the presumption is rebuttable and the inadequate quality of the documents produced rebuts the presumption in this case;
e) a key factor, ignored by the judge, is that the wife was ordered to produce the registration documents used to generate the Family Card record entry in favour of the marriage ['D5']. The wife told the court that she had these documents but then failed to produce them. The husband's case is that if the wife had done nothing then the judge might have used the presumption, but, where she has tried and then failed to produce the documents, the adverse inference thereby generated is sufficient to rebut the presumption;
f) The judge was wrong to contemplate the deployment of the doctrine of estoppel to cases relating to the validity of marriage; the judge was plainly influenced by the concept of estoppel in coming to his decision;
g) The judge erred in applying the presumption of marriage to the present case. The presumption only applies where the issue is whether a valid marriage 'ceremony' has taken place. In the present case the issue concerns registration and not 'ceremony';
h) Finally, the appellant seeks to rely upon fresh evidence to the effect that, unbeknownst to the husband and the court, the wife had inappropriately made contact with the expert, Dr Bao, before he gave his oral evidence, thereby bringing into question her good faith and overall credibility.
The respondent's case
- The respondent's case on paper for the appeal was marshalled within a commendably clear skeleton argument by Mr William Tyzack, who did not appear below. The oral presentation of that argument was undertaken by Mr Timothy Scott QC, leading Mr Tyzack, at the appeal hearing. A respondent's notice has been filed seeking to uphold the judge's decision on grounds in addition to those set out in the judgment.
- In summary terms the respondent's case is as follows:
a) The judge should have found that Syrian law did not require civil registration in order for a marriage to be valid. There being no issue between the parties as to the validity of the marriage itself, the judge did not therefore need to consider the evidence in relation to registration;
b) Dr Bao's original opinion as to the validity of the marriage was plain. Thereafter matters became somewhat confused, as a result of the husband's lawyers submitting further questions to the expert. Nevertheless the central effect of Dr Bao's evidence is that a religious marriage ceremony is recognised by the relevant court as a valid marriage from the time of its inception. Civil registration triggers benefits in terms of recognition by the civil authorities, but the validity of the marriage, as a matter of Syrian law, does not depend upon registration;
c) Even if registration was required, the evidence pointed firmly, as the judge found, towards the fact that the marriage had been registered in Syria and, as such, the judge did not need to rely upon any presumption of marriage;
d) The judge's determination, based on the presumption, is a finding of fact and the Appellant therefore has a steep mountain to climb to succeed in appealing such a finding.
The presumption of marriage
- Before turning to a more detailed discussion of the issues raised by this appeal, it is no doubt helpful to explain what is meant by the "presumption of marriage by cohabitation and reputation" upon which the judge relied. The relevant law is effectively set out in Rayden and Jackson on Relationship Breakdown, Finances and Children (19th Edition) at paragraph 3.154 to 3.158 (it is to be noted that this expanded entry is in the 19th Edition which was published after the judge's judgment).
"Where there is no positive evidence of any marriage having taken place, where parties have cohabited for such a length of time and in such circumstances so as to have acquired the reputation of being spouses, a lawful marriage may be presumed to exist. This is particularly so when the relevant facts have taken place outside the jurisdiction.
Where the presumption of a lawful marriage is fully engaged, it may be rebutted only by strong and weighty evidence to the contrary. As to the degree of proof required to rebut the presumption that a marriage ceremony took place, see Pazpena de Vire v Pazpena de Vire [2000] 1 FLR 460.
Where the court has evidence that the parties have undertaken a ceremony of marriage and have subsequently cohabited then, unless there is cogent evidence to the contrary, the existence or happening of all other things necessary for the validity of the marriage will be presumed. This extends to making presumptions about the granting of a special licence.
The presumption can be relied upon where the legal position in the lexi loci celebrationis is unclear. K v A (marriage: validity) [2014] EWHC 3850 (Fam) involved a Nikah marriage celebrated in Pakistan between two parties apparently domiciled in Pakistan. Although there was no clear answer as to whether the marriage would be considered valid under Pakistani law, the official Nikah marriage form and its subsequent registration gave rise to a presumption of a valid marriage. Roberts J made and was able to rely on findings that the marriage was consummated after its celebration, that the parties commenced cohabitation thereafter and, until divorce proceedings were issued in England by the wife, the marriage had always been treated as a valid marriage by the parties, their family and the wider community. It was also relevant that under Pakistani law, as English law, there is a strong presumption of marriage based on cohabitation and reputation. The approach can also extend to a presumption about the death of a former spouse.
The claim based on a presumption will not always succeed. The petitioner in Asaad v Kurter [2013] EWHC 3852 (Fam) also failed in her claim to establish a marriage based on presumption but on the facts of that case the court made a decree of nullity as opposed to a finding of 'non-marriage'.
As to whether a respondent can be estopped from denying the validity of the formalities of the marriage, see Pazpena de Vire v Pazpena de Vire (the existence of such estoppel doubted)."
- The relatively recent decision of Pazpena de Vire (in an area of jurisprudence that goes back at least to Wilkinson v Payne (1791) 4 Term Rep 468) is of particular importance in drawing together the current law with respect to the presumption of marriage. The factual background related to a couple who had lived together as if validly married for 35 years, following a proxy marriage and where the 'husband' had forged a purported marriage certificate upon which both the wife and the authorities in the Argentine had relied. Mr Michael Harrison QC, sitting as a deputy judge, reviewed the relevant historical authorities and held that:
'There is no doubt from the cases that there is a strong presumption in favour of a valid marriage where parties have long cohabited as man and wife. However, there appears to be a divergence in the cases as to the degree of proof required to rebut the presumption, according to whether the presumption goes to the question of actual ceremony rather than formalities.'
- Mr Harrison then reviewed the Divisional Court authority [Sir Jocelyn Simon and Baker J] of Mahadervan v Mahadervan [1964] P 233 which, he held, established that [paragraph 19]:
'… where a marriage has been followed by long cohabitation and reputation, the presumption that the marriage was performed and contracted in conformity with the requirement of local law may only be rebutted upon evidence proving the contrary beyond all reasonable doubt. Put another way, every possibility that the marriage did comply with local formalities must be excluded.'
- Mr Harrison then went on to consider the later Court of Appeal authority [Evans, Schiemann and Robert Walker LJJ] of Chief Adjudication Officer v Bath [2000] 1 FLR 8, in which, unfortunately, Mahadervan does not seem to have been cited. In Bath there was clear positive evidence that the statutory requirements for a valid Sikh marriage at a Sikh temple in England had not been complied with in that, contrary to the understanding of the couple, the temple was not registered for the conduct of marriages. The couple had, however, lived together as man and wife for nearly 40 years prior to the husband's death. The issue of the validity of the marriage was only raised for the first time at that stage when the social security authorities questioned the wife's right to claim a widow's pension. Following a review of the authorities referred to on the topic in the then current edition of Halsbury's Laws, and in the context of a domestic marriage where the requirements of marriage in England and Wales applied, Evans LJ, giving the lead judgment, held:
'In my judgment, these authorities show that the common law presumed from the fact of extended cohabitation as man and wife that the parties had each agreed to cohabit on that basis, and the presumption extended to include an inference that the statutory requirements first introduced by Lord Hardwicke's Marriage Act 1753 had been duly complied with; but in each case the presumption was capable of being rebutted by clear and convincing evidence. It is understandable why clear evidence was required to rebut the presumption after a long period of unchallenged cohabitation as man and wife, because the evidence in rebuttal would by definition refer to events many years in the past and might be concerned with matters that were not easily susceptible of proof at that distance of time.'
- Evans LJ went on to review a number of other cases before concluding [at paragraph 31]:
'These authorities show that when the man and woman have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form. … When there is, as there is in England, a legal requirement that the marriage ceremony shall take a certain form, then the presumption operates to show that the proper form was observed, and it can only be displaced by what I would call positive, not merely 'clear', evidence (see the authorities cited in support of Halsbury's Laws). How positive, and how clear, must depend among other things upon the strength of the evidence which gives rise to the presumption – primarily the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife.'
- CAO v Bath was a strong case on the merits. The revenue had taxed and claimed contributions from the couple on the basis that they were married throughout the 40 year period, only raising the issue once the husband had died. Further, the court was plainly struck by the apparent unfairness of dis-applying the presumption in a case where there was evidence of a ceremony, but some aspect of it was not valid, as opposed to a case where there was no evidence of any ceremony at all, to which the presumption would apply in full.
- Having considered CAO v Bath, Mr Harrison (in his judgment in Pazpena de Vire) observed:
'From this case, the appropriate test would appear to be that evidence sufficient to rebut the presumption as to compliance with formalities must be 'clear' and 'positive', or 'compelling'. Whichever formulation is adopted, the position is plainly that a long-standing marriage will not lightly be struck down on account of some want of compliance with formal technicalities of local law relied on many years later. The public policy behind this approach is obvious.'
- The cases on the presumption of marriage are clear in identifying the underlying policy in favour of holding to the validity of a 'marriage' which has been evidenced by co-habitation as a married couple for a substantial period of years. At one stage Mr Goodwin submitted that the presumption had no place in the present case where the focus is not on the validity of a 'ceremony' but upon the subsequent requirements of Syrian law for registration following the birth of a child some years later. In my view, such a submission seeks to establish a difference when there is no real distinction to be drawn in the context of the policy behind the presumption; the presumption cases are all concerned with looking at everything, on the facts of each case, that needs to take place to achieve a valid marriage. Normally all such elements will be coterminous with the 'ceremony', but not necessarily so.
- The more recent cases have not held to the very high standard of proof (beyond reasonable doubt) identified by the Divisional Court in Mahadervan, but, on any view, each identifies an enhanced degree of evidential solidity, on the balance of probability, with the establishment of clear or positive or compelling evidence, depending on the facts of each case, before the presumption may be displaced. The fact that the Divisional Court held to the highest standard of proof, of itself, underlines the strength of the policy in support of upholding an apparent marriage to which the presumption applies.
- Finally, before leaving this review of the case law, it is of note that Evans LJ in Bath identified evidence that might support the existence of the presumption as not simply being confined to a measurement of the period of cohabitation, but as including the manner in which the parties had 'regarded themselves' or were treated by others as man and wife.
Discussion
- HHJ Tolson, relying upon the evidence of Dr Bao, held that under Syrian law it was necessary for this marriage to be registered following the birth of the couples' child in order to establish a valid civil marriage. For the purposes of his appeal (as opposed to the wife's cross appeal where that finding is challenged), the husband relies upon the judge's conclusion on this point. Mr Goodwin, therefore, correctly identified that the central question before HHJ Tolson was whether or not there had been a valid registration of the marriage following the birth. There is therefore no challenge to the judge's approach which was, indeed, to make that issue the primary focus of his decision.
- Although the validity of the marriage must be decided in accordance with Syrian law, an English judge applies our domestic law in determining any issues of fact. The judge was therefore required to consider whether the presumption of marriage applied in coming to his conclusion on the evidence.
- There is no challenge to the judge holding that the length of cohabitation in this case, some 14 years, is sufficient to engage the presumption, albeit that, as the authorities demonstrate, the length of cohabitation may have an impact upon the degree of solidity necessary for any evidence needed to rebut it. In addition, the judge found that the couple had conducted themselves entirely as a married couple throughout the period. In this regard, I reject Mr Goodwin's submission that the husband's correspondence with the authorities in 1999 and the celebration party where he introduced his 'wife' to friends and colleagues are irrelevant. Although these events occurred prior to the birth of the child, and therefore prior to the time when, as a matter of Syrian civil law (as the judge found it to be), the marriage could be registered and become valid, the husband's conduct in 1999 was part of a piece with the manner, on the judge's findings, in which this couple lived throughout the period of cohabitation. They behaved at all times as if they were to all intents and purposes married.
- A particularly telling feature of the evidence is the fact that it was the husband who commenced divorce proceedings, thereby asserting in his divorce petition that there was indeed a valid marriage that he sought to have dissolved. The issue of validity was not raised for the first time by the husband, but by the district judge who came to review his petition. In the context of evidence of how the couple 'regarded themselves', there could hardly be clearer proof that the husband, even at the end, regarded this as a valid marriage.
- Finally, in terms of evidence in support of the presumption, save for the administrative act of registration itself, each of the necessary substantive elements required for a valid Syrian marriage existed. A binding religious ceremony had taken place, which had been accepted and registered as such with the court, and a child had been born to the couple, thereby satisfying one of the two alternative outstanding requirements.
- It is against this evidence in support of the presumption that the evaluation of the solidity of the evidence to the contrary falls to be undertaken in order to determine whether it is clear, positive or compelling. The judge, having considered that evidence, held that it neither pointed one way nor the other. In the absence of an actual registration document, the evidence is limited to the conflicting record entries firstly for Family Card 146476 'D5' recording that the couple are married and, secondly, for Family Card 16881 'D19', which relates to the husband alone and records that he remains single. The judge held that:
'They are in conflict one with the other. If either one held sway then it might determine the case definitively one way or the other, but it seems to me that as there are two conflicting documents of apparently equal weight they cannot affect the balance of the case. I am left to begin with the presumption that I have mentioned which is reinforced by the evidence over the years, the conduct and assertion of the parties in particular.'
To succeed on appeal, the husband must establish that the judge was in error in determining the central factual issue on that basis.
- Mr Goodwin's primary submission is that the judge was wrong to regard the two conflicting record entries as effectively of equal weight, thereby cancelling each other out. He submits that the judge should have had full regard to the fact that the wife had asserted that she had access to the original registration document used to produce the record of marriage at D5, but she then failed to produce any such document. In those circumstances Mr Goodwin submits that the presumption must be rebutted.
- Whilst it is correct that the judge does not expressly deal with this point, we do not have any transcript or other evidence of the wife's original assertion and it is thus difficult to evaluate the weight of the point made. What can be said, however, is that, at most, this episode within the forensic process could not possibly, of itself and in the almost automatic manner submitted by Mr Goodwin, negative the presumption of marriage, established as it was by 14 years of cohabitation and the other conduct as found by the judge. It was a factor in the evidence in the case. The judge seemingly failed to give it any weight. Whether he was in error in so failing is difficult for this court now to judge. Even if the judge were to give such a factor very substantial weight, however, it would still, at the end of the day, be a negative rather than a positive piece of evidence; it is a failure by the wife to produce a document, which does not prove that such a document does not exist or has never existed. At most, it may give rise to an adverse inference against the wife. Given the need for the husband to produce clear, positive or compelling evidence to rebut the presumption established by the parties' conduct over the years, the wife's failure to produce the record must fall well short of that mark.
- It is right to deal with Mr Goodwin's criticism of the judge's reference to estoppel at this stage. Whilst it is the case that the judge entertained the thought that estoppel may have some legitimate role to play in his analysis, as his description of the actual decision making process makes plain, he did not do so. The fact that estoppel was considered may indicate the strength that the judge attributed to the degree to which the couple, and in particular the husband, had presented as a married couple over the years, but there is no indication that the judge, in the event, erred in law in his approach by relying upon estoppel, as opposed to deploying the presumption of marriage, as he was entitled to do.
- The evidence of Dr Bao was plainly of assistance to the court in describing the basis of Syrian law. It is unfortunate that his contribution became, to a degree, confused, no doubt in part due to difficulties in translation and in part as a consequence of repeated questioning. So far as the husband's case is concerned, however, the judge utilised the expert's evidence in a favourable manner by holding that registration following the birth of the child was a necessary requirement. Other than pointing to the absence of a definitive registration document, Dr Bao did not put forward any concluded view on the basis of the two conflicting Family Card record entries. The expert's evidence did not, therefore, take the case any further, one way or the other, on the central factual issue.
- As part of his appeal case, the husband seeks to adduce as fresh evidence material which suggests that the wife had made clandestine and unilateral contact with Dr Bao in the period leading up to the hearing. We had read this material before the hearing, but reserved our position on the application to adduce fresh evidence. It must be stressed that there is no suggestion that Dr Bao was influenced in any manner by such contact as the wife may have attempted to make with him. The importance of this evidence, which only came to light after the hearing via a chance remark to the interpreter by Dr Bao, which was passed on to the husband's lawyers is said to be that it relates to the impact that it would have been likely to have on the judge's view of the wife, her credibility and, importantly, her assertion as to the existence of a valid registration document that was favourable to her case.
- For my part, the fresh evidence, even if taken at its highest (and of course it is as yet untested), indicates ill-judged behaviour by the wife in the immediate lead up to an important court hearing. It would be a leap beyond the capacity of the strength of this evidence to hold that it, even if taken together with an adverse inference arising from the wife's assertion that she actually had a valid registration document, was sufficiently solid, clear and compelling evidence that there had not been a registration sufficient to overcome the presumption of marriage.
- Contrary to the husband's case, I consider that the judge's approach to the factual issue before him was entirely in accord with that described in the authorities to which I have referred. The background facts justified, as a matter of policy, a presumption that this couple were indeed validly married. The husband had asserted the existence of the marriage from beginning to end; he had even asserted its validity in his own divorce petition. Against that background, clear, positive or compelling evidence was required, but it simply was not there. It is not possible to criticise the judge for holding that the evidence of records from Syria did not lead in a positive direction, one way or the other. In circumstances where the evidential burden under the presumption was on the husband that should have been the end of the case and, as the judge held, it was. Contrary to the husband's case on appeal, it is not only impossible to hold that the judge was wrong in his finding, in my view, on the evidence, it was the only finding which was open to him. In consequence, I would hold that the husband's appeal fails and, if my Lords agree, must be dismissed.
- In the light of my overall conclusion, it is not necessary to consider the alternative argument raised by the wife on the issue of whether registration is actually required as a matter of Syrian law.
Lord Justice Briggs:
- I agree.
Lord Justice Underhill:
- I also agree.
