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England and Wales Family Court Decisions (High Court Judges) |
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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Akhter v Khan (Rev 4) [2018] EWFC 54 (31 July 2018) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2018/54.html Cite as: [2018] WTLR 729, [2019] 1 FCR 24, [2019] Fam 247, [2019] 1 FLR 575, [2019] 2 WLR 771, [2018] EWFC 54 |
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Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| Nasreen Akhter |
Petitioner |
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- and – |
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| Mohammed Shabaz Khan |
Respondent |
|
- and - |
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| The Attorney General |
1st Interested Party |
____________________
Paula Rhone-Adrien (instructed by Messrs Seth Lovis & Co Solicitors) for the 1st Respondent
Deepak Nagpal (instructed by the Government Legal Department) for the 1st Interested Party
Hearing dates: 5th - 6th February and 12th - 13th July 2018
____________________
Crown Copyright ©
Mr Justice Williams:
Introduction
a. Are the parties to be treated as a validly married under English law by operation of a presumption of marriage;
b. if not, is the marriage a void marriage, susceptible to a decree of nullity.
The Formulation of the Issues
Validity of Marriage
a. Presuming proper formality of a ceremony followed by cohabitation.
The effect of this presumption is that if a marriage ceremony is proved the court should presume that the proper formalities (in this case the English formalities) were followed. The presumption is capable of rebuttal by strong and weighty evidence.
Although Mr Le Grice QC addressed the law relating to this limb of the presumption ultimately this was not pressed very hard on behalf of the wife as a basis for concluding a valid English marriage was established.
The husband and the Attorney General both submitted that the evidence given by both the wife and the husband clearly established that the ceremony was not one which could create a valid English marriage and that the positive evidence of the parties rebutted any presumption- if indeed any presumption arose on the facts.
b. Presuming the ceremony (and the proper formality)
i. the effect of this form of the presumption is that where parties are reputed to be husband and wife and have long cohabited that the court should presume that a ceremony took place accompanied by the proper formalities to establish a valid marriage.
ii. The wife submits that the effect of the presumption (particularly in the light of the A-M v A-M [2001] 2 FLR 6 decision) is to presume that a ceremony took place by proxy in Dubai whilst the parties were living as husband and wife there, that that ceremony established a valid Dubai marriage and that a valid Dubai marriage would be entitled to recognition as a valid marriage in England.
iii. The Attorney General submits in reliance on the Al-Saedy v Musawi (presumption of marriage) [2010] EWHC 3293, [2011] 2 FLR 287 case that the presumption can only be brought to bear if there is some evidential foundation for the possibility of another ceremony (unknown to the wife) having taken place. He submits that there is no evidential foundation (in contrast to A-M) on which the presumption can rest.
iv. The husband and the Attorney General both submit that again the presumption is rebutted by the evidence of the parties to the effect that:
1. They obtained a marriage certificate in relation to the English ceremony in order to demonstrate to the Dubai authorities that they were validly married in the eyes of Dubai law. Thus there was no reason why any further ceremony should have taken place in Dubai.
2. Both parties gave evidence that no ceremony took place in Dubai.
3. Neither party suggested that they had divorced in Dubai so as to create any need to replace the marriage which was viewed by the Dubai authorities as valid.
4. They distinguish the A-M case.
5. Upon return from Dubai the wife only enquired about an Islamic divorce which suggests she did not consider anything had occurred in Dubai to create a marriage in Dubai would be recognised in England.
Nullity of Marriage
a. In order to be susceptible to a decree of nullity all that needs to be established as an act allegedly creative of a marriage status. Marriage will be established for instance by a ceremony in public which is expressed to be a marriage.
b. Section 11 of the Matrimonial Causes Act 1973 on its plain language provides for nullity where certain requirements of the Marriage Act 1949 are not complied with.
c. Recent authorities which have interpreted section 11 of the Matrimonial Causes Act 1973 as requiring the marriage ceremony to have purported to, or attempted to, comply with either Part II or Part III of the Marriage Act 1949 are flawed for a variety of reasons. In particular it is submitted that the jurisprudence of the Ecclesiastical Court prior to 1857 (for example Pertreis v Tondear (1790) 1 Hagg Con 136) shows that that court did not adopt such a narrow interpretation. It is submitted that none of the recent authorities took account of that body of jurisprudence. It is submitted that the courts were required to do so. Mr Nagpal notes the relevant statutory provision was section XXII of the Matrimonial Causes Act 1857 which required the High Court Family Division (as we now are) to act and give relief as may be conformable to the principles and rules on which the Ecclesiastical Courts had previously acted. Mr Le Grice QC submits that section 26 of the Senior Courts Act 1981 (which is the successor provision to one part of the 1857 Act) states that the High Court shall have all such jurisdiction in relation to matrimonial causes (including nullity) and matters as was immediately before the commencement of the Matrimonial Causes Act 1857 vested in the Ecclesiastical Court.
d. It was not submitted that the High Court now retains or could exercise some sort of inherent jurisdiction outside the parameters of section 11 of the Matrimonial Causes Act 1973 to fill in a gap created by a statute which deals only with marriages in accordance with the rites of the Church of England or under a superintendent registrar's certificate.
e. The term non-marriage should thus be reserved to situations which properly warrant the description such as actors acting a scene or parties playing at getting married.
f. Supplementing her submissions as to the proper interpretation of section 11 the wife prays in aid the effect of rights under the ECHR. It is submitted that section 6 of the Human Rights Act 1998 makes it unlawful for the court to act in a way incompatible with a Convention right. It is also submitted that section 3 of the Human Rights Act 1998 requires the court so far as it is possible to do so to read and give effect to primary legislation in a way which is compatible with Convention rights.
i. It is submitted that the law of non-marriage is indirectly discriminatory in breach of Article 14. It is submitted that the current approach to the law of non-marriage means that Muslim women do not receive a fair trial because it excludes them from making a financial claim against a man with whom they had a Nikah marriage.
ii. It is submitted that the law of non-marriage is a breach of the Article 8 Right to respect for private and family life because characterising a marriage as a non-marriage and preventing it being void is offensive and stigmatises a marriage as non-existent. It is submitted that Article 8 can include the right to respect for status.
iii. It is further submitted that Article 1 of the First Protocol which protects the peaceful enjoyment of possessions is infringed because a wife's unascertained share of the matrimonial assets amounts to a right in property which a wife is precluded from claiming if her marriage is categorised as a non-marriage rather than a valid, voidable or void marriage. It is submitted that she is deprived of her possessions not due to conditions provided for by law but by being denied access to the court and a fair trial.
iv. It is further submitted that Article 16 of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1979) (CEDAW) is also engaged and (I think) that the law of non-marriage is indirectly discriminatory against women because the effect of a finding of non-marriage impacts upon the ability of a wife to assert property rights. Given that in most cases property will legally be vested in the man the status of non-marriage as a discriminatory effect on women because it prevents them making a claim for financial relief.
g. In addition to the points raised by Mr Le Grice QC on behalf of the Wife, I also invited the parties to consider whether under the umbrella of Article 8 the rights of children to have their best interests considered as a primary consideration were engaged given that the decision on nullity would arguably affect them given their mother would not be able to make a financial remedy application if this was neither a valid or a void marriage. The fact that section 25(1) of the Matrimonial Causes Act 1973 imposes a duty on the court to give first consideration to the welfare while a minor of any child of the family in relation to such applications arguably engages the interests of the children in the interpretation or application of section 11 of the Matrimonial Causes Act 1973.
a. She submitted that the evidence demonstrated the parties had clearly made a choice only to marry religiously and that they had been advised of the need to embark on a civil ceremony in order to obtain a legally valid marriage and chose not to undertake that ceremony of marriage.
b. The husband submits that the interpretation of section 11 of the Matrimonial Causes Act 1973 is clear and that the religious ceremony was a wholesale failure to make any attempt at compliance with the requirements of the Marriage Act 1949. Thus the religious ceremony falls into the category of non-marriage rather than a void marriage. Ms Rhône-Adrian submits that the series of cases provide clear guidance as to the circumstances in which this court can conclude that a marriage ceremony falls within section 11 of the Matrimonial Causes Act 1973 and this is plainly well outside that guidance failing each of the previously identified factors.
c. Ms Rhône-Adrian emphasises the following in respect of the fundamental rights arguments:
i. Article 12 does not confer or guarantee a right to divorce
ii. It was submitted that having made that choice it would be un-just retrospectively to impose on the husband a remedy provided by law which neither party had any intention of creating at the time of the religious ceremony. It was submitted that in terms of the parties fundamental rights the husband's rights to choose the form of marriage and its consequences were as valid for Article 8 purposes as the wife's.
In consequence Miss Rhône-Adrian submits there is no need or purpose in revisiting the interpretation of void marriages.
a. The construction of section 11(a)(iii) of the Matrimonial Causes Act 1973 clearly requires that the 'certain requirements' which were not complied with were those identified in section 25 or section 49 of the Marriage Act 1949. The linkage between the two is plain.
b. The authorities in which the point has been considered all agreed with that interpretation including Moylan J (as he then was) in the MA v JA and the Attorney General (also known as A v A (Attorney-General Intervening) [2012] EWHC 2219 (Fam); [2013] 2 FLR 68 case.
c. Section 26 of the Senior Courts Act 1981 does not import into the High Court any current obligation to interpret the law in the way that the Ecclesiastical Courts did prior to 1857. The relevant sections of the earlier statutes are not replicated in the Senior Courts Act 1981.
d. In any event it is submitted that the absence of reference to the Pertreis case in the modern authorities does not render them wrongly decided. Further Mr Nagpal identifies other cases from the High Court applying Ecclesiastical Court principles which demonstrate that that court would decline to hear or grant any relief in relation to marriages which it considered were outside the proper definition or interpretation of marriage for the purposes of that court.
e. He agrees that there is no vestigial Ecclesiastical Court or inherent High Court jurisdiction to grant degrees of nullity and he points out that the Ecclesiastical Court only dealt with Christian marriages.
f. The Attorney General submits that human rights or fundamental rights considerations do not affect either the interpretation of section 11 or its application. In particular it is submitted that
i. Article 14 is only of relevance if it is established that and other ECHR right is engaged. It is not a freestanding right.
ii. Article 6 confers only a procedural right of a fair hearing it cannot create a substantive right to a decree of nullity or to a consequent remedy. The wife has access to a court.
iii. Article 12 (subject to anything the Supreme Court might say to the contrary in Owens) does not confer a right to a decree of nullity or a divorce.
iv. Article 1 of Protocol 1 cannot potentially create any property rights unless you have a valid marriage or a void marriage. In any event the authorities are far from clear that the right to a share in the matrimonial acquest creates a true 'right' within the meaning of A1P1
v. The wife's Article 8 argument is about status. In fact there is no difference in status between a void marriage and a non-marriage. If this situation falls within Article 8 because it is a marriage according to conscience there is no logical reason to exclude all forms of marriage however unorthodox they may be for instance as referred to in an article by Mr Le Grice QC ceremonies such as hand fasting or broom jumping. The Attorney-General submitted that in Owens the Court of Appeal held Article 8 was not engaged. The Supreme Court decision also has now held that Article 8 does not confer a right to divorce or the Attorney-General would submit to nullity.
vi. The Attorney General accepts that Article 3 of the United Nations Convention of the Rights of the Child informs Article 8 ECHR but does not accept that the children's best interests are engaged at this stage. In any event even if they are the children's best interests are addressed by the remedy that is available to the wife under Schedule 1 of the Children Act. Section 11 of the Matrimonial Causes Act 1973 applies to adults without children or without minor children as well as those with children and its interpretation cannot be dictated by those cases where minor children are involved.
The History and Factual Findings.
| 5 Dec 1971 | Nasreen Akhter born |
| 14 Dec 1971 | Mohammed Shabaz Khan born |
| 13 Dec 1998 | Parties undertake Islamic marriage ceremony at TKC Chowdhury's in Southall. The marriage certificate records that H was a car salesman resident at nine Elizabeth House, St Leonard Street, London, E3 it is signed by him. It records W as a trainee solicitor living at 10 Branca Road, Kent and is signed by her. It records the 'Wali' as Rehmat Ali retired and is signed by him. The witnesses are Mohammed Ayaz Khan and Ramiz Ibrahim. W said the Certificate was not produced at the time but only in 2006. She said it wrongly records the dowry as £500 when in fact it was books on Islamic jurisprudence that she had specifically asked for. The Imam who conducted the ceremony Dr Khalid M Khan of the Lambeth Islamic centre has provided a letter dated 10 December 2016 in which he confirms that the ceremony was not registered but that he advised W's father that the Nikah ceremony should be followed by a civil ceremony for legal recognition. W says they met twice before the marriage that the ceremony was arranged fairly swiftly because Ramadan was approaching and they wished to get married prior to Ramadan and its fasting obligations. She described how although they had only met twice the discussed the wedding on the phone on several occasions including how it would be followed by a Walima and the civil ceremony. She said they had not discussed a detailed contract prior to the marriage and that she knew very few people who had. She described what the Imam said about the obligations of marriage and the commitments of being a husband and wife and how the ceremony was amplified by a loud speaker so all could hear. She described how the Imam confirmed they were not already married and that her father was her guardian, what the mahr (dowry) was. She said that following the Nikah ceremony which had been organised by and paid for by her family that she was expecting the husband to organise the Walima and the civil ceremony. She said that is traditionally how responsibility is divided. W says that as a lawyer in training she was concerned that her rights were not protected and that she told the husband that they would be treated as cohabitees. She says that the husband said English law was not important and that Sharia Law was more important to their lives. She says that on occasions when she raised the issue it led to arguments. She says she changed her name by statutory declaration. W's case is that her father also spoke to the husband to suggest a civil ceremony was undertaken but the husband dismissed his request. W says her sister Shameem Ibrahim had had a civil wedding service following her Nikah ceremony. Mrs Ibrahim said the family were concerned that the husband had refused to undertake a civil ceremony. Her father Rehmat Ali confirms that he acted as the Wali and that he had expected that there would be a civil ceremony after the Nikah. He says that he spoke to the husband and said that when he was preparing for the Walima he should also arrange a civil ceremony and that the husband agreed to do this but never did. After the ceremony she and the husband returned to her mother's home with a small group of close family. Following that they went to his mother's home at Elizabeth house and spend their first night as a married couple there. H says W was and still is extremely religious and felt it was unnecessary to register the marriage. He described the importance of the Nikah ceremony to him. It meant that he was married before God and under Islamic law. His position was that the question of a civil ceremony had never been raised by either of them or anybody else. I find this hard to believe given how many members of their respective families, including his brother, have undergone civil ceremonies. Whilst I could understand them discussing the issue and deciding not to have a ceremony I cannot accept his evidence that neither he or the wife or anybody else ever raise the question of a civil ceremony. He said that had it been raised then that he would have agreed to it. He described how the vows that they gave were almost the same as a civil marriage. He says that she never at any time requested that a civil ceremony be conducted, that she well knew the Nikah ceremony had not resulted in a marriage valid in English law and that she has deliberately set out to deceive the court. (Self-evidently this is a serious allegation in respect of a qualified lawyer) H does say that they did not have a Walima because there is no requirement under Sharia Law for that to take place. He says that the Wali (Guardian) was not the wife's father but was her sister's ex-husband although he accepts that the wife's father was present. He has provided a statement from his former brother-in-law (although he did not give evidence) in which he says that the wife was adamant she did not want a civil ceremony despite the encouragement of her sister. H says that W could have made the holding of a civil ceremony a condition of the marriage but did not. |
| Following the ceremony the wife explained how they had gone around the husband's family visiting for dinner so that she could be introduced as his wife. She also described how her mother-in-law took her shopping to buy the gold that would be associated with the Walima and civil ceremony. | |
| 16 Dec 1998 | W says that she spoke to H a about the civil ceremony because there had been no progress on the Walima and the civil ceremony. In her evidence she described how usually the wedding was 'a whole host of parties that centre around the marriage' incorporating the Nikah, the Walima and the civil ceremony and that the 'whole marriages incomplete without the civil ceremony as well'. The husband accepted that she had mentioned the Walima and that he had said he didn't have the finances to hold a party at that time. He said it had been mentioned again when they were in Dubai but he had said all 'it's a bit late now we got three kids.' I'm satisfied that if the wife was mentioning the Walima this far down the line it is more likely than not that she was also mentioning the civil ceremony. |
| Mid-Dec 1998 | Parties have very brief honeymoon in Swansea during which marriage is consummated. |
| Sep 1999 | M born in Goodmayes Hospital. W says that around the time of the birth she spoke to the husband about carrying out the civil ceremony of marriage. She says that there was an argument and that the husband accused her of having changed and become materialistic. The husband accepted that he had said to her that she had become materialistic but he said it was not in connection with the civil registration. |
| 2000 | She alleges that H smashed a chair and threatened never to register the marriage after an argument |
| July 2001 | N born in Birmingham. W says that at around the time of registering the birth that she made enquiries at the Birmingham registry office because she was in communication with them about changing the name which had been registered. She says she made several calls to the office and spoke to the husband but again he became angry and threw an egg shell in her face. W says she decided to leave whilst H was away on a business trip and that she returned to her mother's home but when the husband arrived she reluctantly returned with the respondent. In his letter of June 23, 2011 H refers to having left the Sheikh in 2001. In his evidence he said that the mother had always been more of a strict Muslim then he and that he had not taken an oath of allegiance to the Birmingham Sheikh. |
| Apr 2005 | O born |
| 2005 | The parties moved to Dubai. The UAE authorities declined to issue a spousal Visa until they are satisfied the parties had a valid marriage. The wife accepted in her evidence that there was no ceremony or blessing that took place in Dubai that the reason for asking for a copy of the marriage certificate was to demonstrate to the Dubai authorities that they were married for the purposes of Dubai law. Although the wife clearly believed herself to be married to 'Shabaz' when pressed she accepted that notwithstanding the process that they had had to go through to prove their married status in Dubai at this had not converted their marriage into a marriage valid in English law. She said that having lived as husband-and-wife are so many years and been treated as husband and wife are so many years that the distinction between law religion and emotion became blurred. In a sense I suspect she kidded herself allowed herself to ignore the fact that she had not undertaken a civil ceremony. |
| October 2006 | A copy of the marriage certificate is obtained from Dr Khan. A statutory declaration was completed by Mustapha Ahmet before Deborah Marsden a solicitor on 2 October 2006 and was Apostilled by Ms Marsden on the same day. The certificate bears a stamp of the embassy of the United Arab Emirates dated 3 October 2006. |
| 2009 | Financial crash in Dubai. H experiences financial difficulties. |
| Jan 2010 | P born at the American hospital in UAE. |
| 2010 | W returns to work at 'Just Wills'. |
| 23 Jun 2011 | W writes to H recording events in relation to the husbands proposed polygamous marriage and her decision to return to live in the UK. In the letter she says that she is still willing to continue with the marriage but that her 'Iman' (her spiritual faith) is not strong enough to live in a polygamous marriage. She closes the letter by saying 'if any of the above is not true please send an email back to me to correct me.' H wrote back to W later that day. His opening comment was 'it is not true' although the subsequent content suggests that this relates to some of the detail of dates rather than the principal issue. In the letter he says, 'whatever has happened I chose not to pursue this matter of second marriage at the moment'. In the letter he makes various complaints about the wife's behaviour and says, 'you have always complained I have never been a good husband or a good father.' He says that he will find her and the children a suitable home and provide her with a car and money whilst he carries on working to earn sufficient to buy her a house. The husband's case in his evidence was that it was completely untrue that he had ever expressed a wish to take a second wife (see paragraph 22 of his statement of 16 May 2017. He says that had he wanted to but he does not believe it would have been an issue for Nasreen. He links the ending of their relationship in Dubai to financial stresses rather than the second wife issue. His evidence on this was entirely unconvincing. At one point he seemed to be taking refuge in points about dates, at another he suggested that it was just a joke. The language used in the emails was far more consistent with him having made a serious reference to the possibility than to it being a joke. The wife's demeanour and account in relation to the question of a second marriage was clear and compelling. She was visibly distressed and spoke with real feeling about how she was British and was not interested in polygamy. She said that it was this issue which made the connection in her mind about the underlying reason for the husband's reluctance to undertake a civil ceremony. Again the mother's evidence had the quality of recalling a lived experience and I have no doubt that the husband had explored the possibility of taking a second wife and that this had created a huge amount of upset on top of the difficulties created by the financial crash. The wife's evidence of how the husband put her under pressure saying that Islam permitted polygamy and that she was a bad Muslim and was rejecting the word of God shows a degree of emotional manipulation which is most unattractive. That the wife should end up effectively apologising for being a poor Muslim because she could not accept him taking a second wife shows how much she wanted to avoid confrontation and how she was prepared to allow the husband considerable liberty. It also confirms that his has the more traditional approach to Islam and the wife's has a more modern and less fundamental approach. |
| 26 Jun 2011 | W says that she and the children returned from Dubai. W says that following this, H remained in Dubai but travelled to England every 4 to 6 weeks and that they continued with the marriage. She says that when the husband returned permanently to England, she raised the issue of a civil ceremony again. H agreed in evidence that he had spent time at the home with W and the children although in his statement he maintains they were not in a ongoing relationship or marriage at the time. |
| W lives at 36 Norwood Drive, North Harrow, a property owned by her sister. | |
| 2011/12 | Upon her return to England, M contacts one or more mosques and sharia councils to enquire about Islamic divorce proceedings. She was advised that they should try to reconcile and that they were going to contact the husband. She says that she did not pursue the matter further because the parties had reconciled. In evidence it was put to her that she had completed all the papers for a religious divorce which she denied. After the completion of the evidence the wife produced a letter which confirmed she had made enquiries but had never completed any paperwork. H says he received some paperwork from the Sharia Council but he never completed it. |
| June 2012 | W says she spoke to H about the civil ceremony. H denies it was ever mentioned. The wife's evidence about the issue of a civil ceremony appeared to me to be spontaneous and drawn from lived experience. Her reference to observations the husband would make it was raised appeared to me to be real. |
| Jan 2014 | H returns from Dubai and rents a one-bedroom flat until August 2014 when he moves full-time in 236 Norwood Drive with the W and children. |
| 15 Jul 2014 | W qualifies as a solicitor |
| Sep 2014 | Estate agents provide property particulars to 'Mr and Mrs Khan'. On 22 of September a viewing for 216 Uxbridge Road was confirmed to W |
| Nov 2014 | W drafts Islamic will for H. W says that H refused to sign it as they were having difficulties in their marriage. Having regard to the level of detail in the draft well it seems more likely than not that H did voluntarily provide that information to W for the purposes of drafting a will. He subsequently changed his mind. H says this was done without his knowledge or involvement. Again his evidence on this was that she had fabricated this based on documents she found when he left the home. That is therefore a suggestion that in 2016 the wife forged a document purporting to originate from 2014. The wife says that records at the firm she was working in would prove that it was done in 2014. I'm quite satisfied that the will arose in the context of a marriage still limping on and that it was drafted with the husband's input. Two thirds of his estate were left to W and the children. The will refers at paragraph 5 a 'to my wife Nazarene Akhtar born on 5 December 1971 of 216 Uxbridge Road Harrow Middlesex HA3 6SW (whom I have married in sharia law only). The will identifies various debts including to his sister-in-law H says it could not have been drafted then as he did not then own 216 Uxbridge Road. Given the completion date of that purchase it seems highly likely that 216 Uxbridge Road was his anticipated address and so it is probable it would have been included in the draft will. |
| 16 Dec 2014 | Letter evidencing gift of £26,000 from Shamim Ibrahim to H in relation to purchase of 216 Uxbridge Road W says this was a loan made by her sister in order to help the family to purchase a new family home. H says this was a gift and that they insisted he took the money. He asserts that this was part of a preconceived plan to make a claim over the property. Although not central to the issues before me, his evidence on this was hard to follow. He was unable to give any explanation as to why his sister-in-law (particularly when he says the marriage had been over for three years) was gifting him such a very substantial sum of money. He also denied that the wife had been involved in the purchase at all. This was not consistent with the emails that the wife subsequently produced referred to above. His evidence that the wife and her sister were forcing him to do things does not seem consistent with his general nature which is a man of determination and force. I do not accept his account of the circumstances of the proposed purchase of 216 Uxbridge Road. In his evidence the husband essentially developed a conspiracy theory in which the wife and her sister plotted against the husband from 2014 all the way through to 2016 in order to take advantage of him. I do not accept that this was the case. I'm quite satisfied that this in the period from 2012 to 2016 the wife was still trying to make the marriage work as was he albeit it was on a steadily declining trajectory. The provision of the money only makes sense in the context of the marriage being ongoing and the home being purchased for the family. The fact that it was purchased in H's name alone rather than in joint names suggests that the husband adopted a more traditional approach than W. It also suggests that W did not either wish or feel able to press her case for joint ownership very hard. |
| 22 Jan 2015 | H registered as sole owner of 216 Uxbridge Road Harrow. Price paid recorded as £485,000. W says she spoke to H to undertake a civil ceremony and identified the financial benefits in relation to inheritance tax. She says H again rebuked her. She says that through 2015 the relationship was up and down. They did not wish to separate and they discussed having marriage counselling but there was a serious lack of trust. W suggested again getting married and sharing their finances. She says H was not keen on this. H maintains that they had effectively been separated from 2011 and so there was never any question of them discussing a civil marriage ceremony, joint bank accounts property purchases inheritance tax or anything of the kind. |
| 3 Apr 2016 | W alleges H assaulted her. |
| 4 Apr 2016 | W alleges H pushed her up against her sister's car. Curiously although H maintains that the marriage will/relationship was effectively over in his mind in 2011 he says in relation to this incident that 'despite the fact that Nazarene alleged I was a significant risk to her safety and well-being, she voluntarily returned home with me that night'. |
| 26 Jun 2016 | W applies for non-molestation order. |
| 16 Aug 2016 | Child in Need Plan |
| 25 Aug 2016 | H, W and children moved to the farmhouse, Pinner (a rented property). |
| 29 Aug 2016 | W alleges H assaulted her. |
| 31 Aug 2016 | Completion of purchase of 11 Allington close in W's name. Purchase price was £210,000. The charge was dated 31 August but neither the purchase or the charge were registered until ninth of January 2017 W says this was purchased using a cash deposit from her sister and is rented out. |
| 20 Sep 2016 | W applies for non-molestation order. |
| 30 Sep 2016 | A mediator confirms the parties have attended a Miam |
| 7 Oct 2016 | Notice of home rights under the family Law act 1996 registered over 216 Uxbridge Road by W. Her address then recorded as the farmhouse, Pinner Hill farm |
| 21 Oct 2016 | W applies for child arrangements and prohibited steps orders at Barnet County Court. |
| 4 Nov 2016 | W files behaviour petition. W files form a seeking various forms of financial relief including a property adjustment order in respect of 216 Uxbridge Road. |
| 9 Nov 2016 | H applies for parental responsibility and shared care. |
| 22 Nov 2016 | H applies to strike out divorce petition |
| 7 Dec 2016 | H files answer stating the parties have not entered into a legally binding marriage in England and Wales and therefore would be considered as cohabitees' In his detailed answer he asserts that the only divorce proceedings which would be applicable would be by way of Sharia law and he asserts that the W is aware that the parties are not legally married and wishes to pursue the application in the hope to make a financial claim under the Matrimonial Causes Act 1973. H prayed that the application for divorce should be struck out. |
| 9 Dec 2016 | DJ Dias. Child arrangements order and continuation of family Law act orders (on the basis of no findings) |
| 14 Dec 2016 | DJ Mulkis Hearing reapplication for freezing injunction and H's application to strike out petition and defend W's applications. Directions were given for the filing of evidence in relation to the application to strike out the divorce petition and it was listed for a one-day hearing before a circuit judge from the first available date after 27 January 2017 |
| 9 Jan 2017 | W registered as owner of 11 Allington Close, Greenford |
| 29 Mar 2017 | Recorder Campbell; The application to strike out the divorce petition and the petitioner's application for a freezing injunction were transferred to be heard in the High Court. W was directed to file and serve a reply to the answer with a cross prayer for nullity and H was to file and serve a rejoinder. Further directions were given for the filing of evidence and for the hearing of W's application for a legal services payment order. |
| W's reply. W accepts the marriage did not comply with the formalities of the marriage acts, she avers that given they had always acted as husband-and-wife that they should be treated as a matter of English law as married by operation of the presumption of marriage and/or estoppel. |
|
| 26 Apr 2017 | Child arrangements order |
| 24 Jun 2017 | W applies for Family Law Act orders without notice. |
| 7 Jul 2017 | H applies to remove restriction against his property. |
| 16 Jul 2017 | DJ Hudd: LSPO made |
| 21 Jul 2017 | DDJ Mendel. Return date of Family Law Act application. |
| 8 Aug 2017 | H application to set aside LSPO listed for hearing on 6 of October 2017 |
| 26 Aug 2017 | H intends to move into 216 Uxbridge Road. |
| 16 Oct 2016 | DJ Hudd: H's application to set aside LSPO is dismissed. H is ordered to pay MPS H's application to discharge restriction on 216 Axbridge Road listed for mention at conclusion of final hearing. H to pay W's costs |
| 25 Oct 2017 | Ex parte non-molestation order of June 2017 discharged after contested hearing. The order records that the incident of 24 June 2017 did not occur in the manner described by the applicant and that she had not satisfied the court that the respondent is threatening her on the balance of probabilities. W was ordered to pay H's costs. |
| 14-16 Nov 2017 | Final hearing listed. Vacated. No Judge available |
The Legal Framework And Discussion
Presumptions of marriage
a. Presumption from cohabitation and reputation;
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.
b. Presumption from ceremony followed by cohabitation.
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.
'where a marriage has been followed by long cohabitation and reputation the presumption… 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.'
'…. 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.'
Later in the judgment Lord Justice Evans referred to the presumption being displaced by what he described as 'positive not merely clear evidence' albeit recognising how positive and how clear it needed to be would depend upon the strength of the evidence which gave rise to the presumption.
'[34] 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 cohabitation as a married couple for a substantial period of years.
[35] 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.
[36] 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 is 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.'
[71]…Were it otherwise, it would be tantamount to elevating a presumption born of common sense into the status of a rule of substance, whereby long cohabitation plus a reputation of marriage would establish marriage, even when all the identified evidence showed that no valid or even void marriage ever took place.
Marriage and Nullity
Marriage Act 1949
25 Void marriages.
If any persons knowingly and wilfully intermarry according to the rites of the Church of England (otherwise than by special licence)—
(a) except in the case of a marriage in pursuance of section 26(1)(dd) of this Act, in any place other than a church or other building in which banns may be published;
(b)without banns having been duly published, a common licence having been obtained, or certificates having been duly issued under Part III of this Act by a superintendent registrar to whom due notice of marriage has been given; or
(c)on the authority of a publication of banns which is void by virtue of subsection (3) of section three or subsection (2) of section twelve of this Act, on the authority of a common licence which is void by virtue of subsection (3) of section sixteen of this Act, or on the authority of certificates of a superintendent registrar which are void by virtue of subsection (2) of section thirty-three of this Act;
(d)in the case of a marriage on the authority of certificates of a superintendent registrar, in any place other than the church building or other place specified in the notices of marriage and certificates as the place where the marriage is to be solemnized
or if they knowingly and wilfully consent to or acquiesce in the solemnization of the marriage by any person who is not in Holy Orders, the marriage shall be void
49 Void marriages.
If any persons knowingly and wilfully intermarry under the provisions of this Part of this Act—
(a)without having given due notice of marriage to the superintendent registrar;
(b)without a certificate for marriage having been duly issued in respect of each of the persons to be married,] by the superintendent registrar to whom notice of marriage was given;
(d)on the authority of certificates which are void by virtue of subsection (2) of section thirty-three of this Act;
(e)in any place other than the church, chapel, registered building, office or other place specified in the notices of marriage and certificates of the superintendent registrar;
(ee)in the case of a marriage purporting to be in pursuance of section 26(1) (bb) of this Act, on any premises that at the time the marriage is solemnized are not approved premises;
(f)in the case of a marriage in a registered building (not being a marriage in the presence of an authorised person), in the absence of a registrar of the registration district in which the registered building is situated;
(g)in the case of a marriage in the office of a superintendent registrar, in the absence of the superintendent registrar or of a registrar of the registration district of that superintendent registrar;
the marriage shall be void
(gg)in the case of a marriage on approved premises, in the absence of the superintendent registrar of the registration district in which the premises are situated or in the absence of a registrar of that district; or
(h)in the case of a marriage to which section 45A of this Act applies, in the absence of any superintendent registrar or registrar whose presence at that marriage is required by that section;
The Matrimonial Causes Act 1973
11. Grounds on which a marriage is void.
A marriage celebrated after 31st July 1971 other than a marriage to which section 12A applies, shall be void on the following grounds only, that is to say—
(a) that it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986 (that is to say where—
(i) the parties are within the prohibited degrees of relationship;
(ii) either party is under the age of sixteen; or
(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage);
(b)that at the time of the marriage either party was already lawfully married or a civil partner;
(c). . .
(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.
For the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.
a. R v Bham [1966] 1 QB 159CA– see 168B-169D
b. Geries v Yagoub [1997] 1 FLR 854 HHJ Aglionby – see (internal pages) 857E-858G
c. A-M v A-M [2001] 2 FLR 6 Hughes J – see paragraphs 55-58
d. Gandhi v Patel [2002] 1 FLR 603 Park J- see paragraphs 31-48
e. Burns v Burns [2008] 1 FLR 813
f. Hudson v Leigh [2009] EWHC 1306 (Fam); [2009] 2 FLR 1129 Bodey J - see paragraphs 53-73; 77-79
g. MA v JA and the Attorney General [2012] EWHC 2219 (Fam); [2013] Fam 51 Moylan J – see paragraphs 67-101
h. Dukali v Lamrani (Attorney General Intervening) [2012] EWHC 1748 (Fam); [2012] 2 FLR 1099 Holman J – see paragraphs 25-38
i. Sharbatly v Shagroon [2012] EWCA Civ 1507 CA – see paragraphs 7; 24; 28; 32-33; 39-40
j. El-Gamal v Al-Maktoum [2011] EWHC 3763 (Fam); [2012] 2 FLR 387 Bodey J– see paragraphs 13-24
k. Asaad v Kurter [2013] EWHC 3852 (Fam); [2014] 2 FLR 833 Moylan J – see paragraphs76-78; -94-95; 99.
'the question of whether a marriage is void, avoidable or valid presupposes the existence of an act allegedly creative of a marriage status. In concubinage and the like, no act of the requisite nature exists. In those places where a marriage requires a declaration before a registrar or priest, a private and secret declaration of consent does not create any kind of marriage, not even a void one…'
"...the Ecclesiastical Court did in fact grant declaratory sentences in cases of "meretricious marriages: Elliott v Gurr (1812) 2 Phillim 16. There is, in my judgment, no discretion to withhold a decree in the exercise of this jurisdiction"
I have been unable to establish from the judgment what statutory jurisdiction existed in relation to nullity at that point in time. I infer from the report that the situation was not covered by the relevant statute at the time. Section 11(c) of the Matrimonial Causes Act 1973 (which Parliament enacted notwithstanding the Law commission's recommendation that marriage between two people of the same sex should be excluded from the nullity provisions) was not in force at the time. That supports the contention that the court at that point in time retained a power to grant a decree of nullity outside the statutory scheme then in place. However given that the statutory scheme is now different I'm not sure that it assists me in determining how section 11 of the Matrimonial Causes Act 1973 should now be interpreted.
"A marriage void, for example, for affinity, will be held not to have been "solemnised", but a void marriage is still a marriage in the sense that it has to be distinguished from the non-existent marriage or mere cohabitation of man and woman".
the High Court shall, in accordance with section 19 (two), have all such jurisdiction in relation to matrimonial causes and matters as was immediately before the commencement of the matrimonial causes act 1857 vested in or exercise ball by any Ecclesiastical Court or person in England or Wales in respect of-
(a) Divorce a mensa et thoro (renamed judicial separation by that act)
(b) nullity of divorce ... and
(c) any matrimonial cause or matter except marriage licenses.
a. In A-M v A-M [2001] 2 FLR 6 Hughes J (as he then was) referred to 'alternative marriage rites consciously and deliberately conducted altogether outside the Marriage Acts and never intended or believed to create any recognisable marriage. Unless a marriage purports to be of the kind contemplated by the Marriage Acts, it is not, I hold a marriage for the purposes of section 11 of the Matrimonial Causes Act 1973. No doubt it is possible to envisage cases where the question whether a particular ceremony or other event does or does not purport to be a marriage of the kind contemplated by the marriage act is a fine one.
b. At paragraph 74 he quotes Cretney and Probert's Family Law, 7th edition, "whilst it is sensible for non-compliance to be a matter of degree, it would be indefensible for a Sikh or Muslim marriage to be struck down in circumstances in which a Christian marriage would be upheld."
c. At paragraph 78 he quotes Bodey J in the Hudson case that it would be "unrealistic and illogical to conclude that there is no such a concept as a ceremony or event which, whilst having marriage - like characteristics, fails in law to effect a marriage" and he decided that the positive intention of all three key participants not to perform or effect a marriage, takes this case outside the intended scope of section 12(c) of the Matrimonial Causes Act "
d. At paragraph 79 he identified that Bodey J had considered whether it was possible or sensible to seek to define or set out a test for a non-marriage. He decided that it was not.
[77]. I am unconvinced that there is or can be any satisfactory definition and to cover this sort of situation for convenience described in shorthand as a non-marriage or a non-existent marriage.
[79] in the result, it is not in my view, either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event having marital characteristics should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case-by-case basis taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.
e. In El-Gamal v Al-Maktoum [2011] EWHC 3763 (Fam); [2012] 2 FLR 387 Bodey J considered an Islamic ceremony conducted by an Imam in a flat in London. He said
"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.
In that case is the ceremony had been conducted by an Imam in front of two witnesses and the parties intended that it should be valid. Bodey J said
"there was a wholesale failure to comply with the formal requirements of English law."
f. At paragraph 85 Moylan J said
"I agree with Bodey J in Hudson v Lee that it is neither possible nor sensible to seek to set out a definitive test for determining whether a ceremony results in a non-marriage or results in a marriage potentially valid within the 1949 Act. He sets out some of the factors relevant to the issue including whether the ceremony bore all enough of the hallmarks of marriage. What are the hallmarks of marriage or, to quote again from R v Bham when is a ceremony in a form known to and recognised by our law is capable of producing, when they're performed, a valid marriage?"
g. At paragraph 87 he said, "...there is a public interest in marriages which have been contracted in England resulting in the obligations and rights consequent on marriage (including a void marriage) being imposed on and afforded to the parties to such marriages"
h. He referred to Ormrod J's judgment in Collett in which he said, "...the general tendency has been to preserve marriages where the ceremonial aspects were in order rather than to invalidate them for failure to comply with the statutory provisions leading up to the ceremony"
i. At paragraph 92 he notes that "...there is also no clear route to identifying which requirements are essential for a ceremony to be within the scope of the 1949 Act. Indeed the 1949 Act only stipulates those failures which will not affect the validity of the marriage and those failures which will result in a marriage being void." [These two classes do not cover the whole ground]
j. A non-marriage is by definition a marriage which is the product of a ceremony which is wholly outside the scope of the 1949 Act. This brings me back to the question of what brings a ceremony within the scope of the act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act.
k. He goes on to consider whether the formal exchange of voluntary consents to take one another for husband and wife could be enough but concludes that this would be too wide. He notes that the parties can adopt such form and ceremony as they see fit. He seems to have identified that the essentials included the intention to contract a marriage and a ceremony which makes plain the necessity for the absence of lawful impediment in the taking of one another to be the lawful wedded wife or husband. He noted that the greater the departure from the 1949 act the more powerful the argument ceremony is one wholly outside its provisions.
l. At paragraph 96 he concluded that the proper approach was that it should be determined by reference to the 1949 Act applied in a manner consistent with the principles summarised by Ormrod J in Collett and taking into account the factors referred to by Bodey J in Hudson v Leigh.
Human Rights
Section 3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
Section 6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section 'public authority' includes—
(a) a court or tribunal, and
[29] I accept the submission of Ms Whipple that these principles hold good despite the passing of the HRA. The limits of the interpretative obligation imposed on the courts by section 3 of the HRA are now well established. It is sufficient to refer to two authorities. In Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291, it was held that the HRA reserved the amendment of primary legislation to Parliament. Any purported use of section 3 of the HRA producing a result which departed substantially from a fundamental feature of an Act of Parliament was likely to have crossed the boundary between interpretation and amendment.
[30] The same approach was adopted in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. At para 33, Lord Nicholls said:
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
Article 6 Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Article 8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 12 - right to marry
men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 1, Protocol 1
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
Article 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.''
Article 3
1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration
''This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first.''
Article 16
States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(c) The same rights and responsibilities during marriage and at its dissolution;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
''Article 26 "Pacta sunt servanda"
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
[3]…… the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state: see, for example, Z v United Kingdom (2001) 34 EHRR 97 , 134-135, 137, paras 87, 98. Thus for purposes of article 6 one must take the domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights. It is evident, thirdly, that the Strasbourg jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim (as in Powell and Rayner v United Kingdom (1990) 12 EHRR 355 and Z v United Kingdom 34 EHRR 97 ) and provisions of domestic law which impose a procedural bar on the enforcement of a claim (as in Stubbings v United Kingdom (1996) 23 EHRR 213 , Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Fogarty v United Kingdom (2001) 34 EHRR 302 ). The European Court of Human Rights has however recognised the difficulty of tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, acknowledging that it may be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy: see Fayed v United Kingdom (1994) 18 EHRR 393 , 430, para 67. An accurate analysis of a claimant's substantive rights in domestic law is none the less the first essential step towards deciding whether he has, for purposes of the autonomous meaning given to the expression by the Convention, a "civil right" such as will engage the guarantee in article 6."
"such exclusion as was effected in the past did not flow from the courts giving the word "spouse" its ordinary meaning. Rather, it emanated from a linguistically strained use of the word flowing from a culturally and racially hegemonic appropriation of it. Such interpretation owed more to the artifice of prejudice than to the dictates of the English language.'
[100] It should be reiterated in this regard that the essential object of art.8 is to protect the individual against arbitrary interference by the public authorities. There may in addition be positive obligations inherent in effective "respect" for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the state is recognised as enjoying a certain margin of appreciation. Furthermore, in the sphere of the state's planned economic, fiscal or social policy, on which opinions within a democratic society may reasonably differ widely, that margin is necessarily wider. This applies also in the present case.
[101] As to the applicant, she chose, together with her partner, to live in a religious marriage and found a family. She and ÖK were able to live peacefully as a family, free from any interference with their family life by the domestic authorities. Thus, the fact that they opted for the religious form of marriage and did not contract a civil marriage did not entail any penalties—either administrative or criminal—such as to prevent the applicant from leading an effective family life for the purposes of art.8 . The Court therefore finds no appearance of interference by the state with the applicant's family life.
[102] Accordingly, the Court is of the view that art.8 cannot be interpreted as imposing an obligation on the state to recognise religious marriage. In that regard it is important to point out, as the Chamber did, that art.8 does not require the state to establish a special regime for a particular category of unmarried couples. For that reason the fact that the applicant does not have the status of heir, in accordance with the provisions of the Civil Code governing inheritance and with the domestic social-security legislation, does not imply that there has been a breach of her rights under art.8.
a. Moore v Moore [2007] 2 FLR 358
b. White v White [2001] 1 AC 596
c. Cowan v Cowan [2001] 2 FLR 192
d. Charman v Charman (no 4) [2007] 1 FLR 1246.
Conclusions on the Law and its application to this case.
a. Unless a marriage purports to be of the kind contemplated by the marriage acts it will not be within section 11
b. What brings a ceremony within the scope of the act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis (see for instance K v K [2016] EWHC 3380, [2017] 2 FLR 1055).
c. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage;
a. Article 8 supports an approach to interpretation and application which the finding of a decree of a void marriage rather than a wholly invalid marriage. This seems to me to be consistent in any event with the historic approach of the courts as shown in the presumptions but also has clearly emerges from the authorities over the centuries which supports a finding of marriage
b. The court should where it is appropriate be able to take into account the best interests of children as a primary consideration and weight with other article 8 rights of the parties,
c. Article 12 ECHR on a horizontal effect basis together with general principles of fairness or equitable principles support the proposition that if the parties had agreed to or it was their joint understanding that they would engage in a process which would ultimately lead to a legally valid marriage means that should be taken into account in determining whether took place falls within or without the parameters of section 11
d. The competing Article 8 rights of the parties can be considered which in the case of one party may be in favour of the marriage being held to be invalid and in respect of the other being held to be void
a. Unless a marriage purports to be of the kind contemplated by the Marriage Act 1949 it will not be within section 11. What brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis. When considering the question of a marriage the court should be able to take a holistic view of a process rather than a single ceremony
b. The court should take account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken; (b) whether it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed whether promises were made; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage (d) whether the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them
a. It was understood by both the husband and wife that they were embarking on a process which was intended to include a civil ceremony in which the marriage would be registered,
b. The wife's understanding and the husband's expressed position was that this civil ceremony was to follow shortly after the Nikah ceremony
c. The failure to complete the marriage process was entirely down to the husband's refusal after the Nikah ceremony had been undertaken to take action to complete the marriage process by arranging the civil ceremony.
d. The wife thereafter frequently sought to complete the marriage process by seeking to persuade the husband to undergo a civil ceremony.
e. The nature of the ceremony which was in fact undertaken bore all the hallmarks of a marriage in that it was held in public, witnessed, officiated by an Imam, involved the making of promises and confirmation that both the husband and wife were eligible to marry
f. thereafter the parties lived as a married couple for all purposes
g. the couple were treated as validly married in the UAE.
