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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> G v M [2011] EWHC 2651 (Fam) (17 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2011/2651.html Cite as: [2011] EWHC 2651 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2011

Mr. Justice Hedley : 

1.  This is an application by a proposed Petitioner for a Decree of Nullity under FPR7/PD7A/Para. 3.2 for permission to file her Petition notwithstanding the absence of a marriage certificate. This proposed Petition was to have been lodged at the PRFD but this application was transferred for determination by a Judge of the Family Division by District Judge Robinsons on 4th August 2011. The Rule provides that this application should be made without notice but the Respondent was informed of it and attended before me by counsel whom I consented to hear in opposition to this application.
2.  The Applicant has no marriage certificate because (as is common ground) none was ever issued. Although paragraphs 3.2 and 3.3 of the relevant Rule refer to urgency, it has not been seriously questioned in the circumstances here either that permission must be sought and or that it could be granted as a matter of law.
3.  The factual focus of this case is events said to have taken place in the Respondent's flat in [an address], London SW3 on or about [a date in] 2007. The Applicant contends that she went through a valid ceremony of Islamic marriage which all involved believed was one which would be recognised as valid under English Law. The Respondent denies that any ceremony took place but accepts (as indeed is the case) that for the purposes of this application the court should assume that fact as the Applicant asserts.
4.  There are parallel proceedings on foot under Schedule 1 of the Children Act 1989 (since the parties have a child) in which the allocated judge is Mr. Justice Bodey. There is a pre-trial review listed for 20th October and it is important that by then it is known whether or not this Nullity Petition may be issued because of course there will be significant overlap between the provisions of Sch. 1 and the provisions for ancillary relief (and thereby extended remedies) which would be opened up by a decree of Nullity. It is a matter of regret that this matter was not listed before Bodey J rather than in the Urgent Applications list in which I assisted having earlier in the day concluded my own list. I heard counsel, reserved judgment and now hand it down in the absence of the parties.
5.  The result of the helpful submissions of counsel was to identify one key issue that required determination: did the events of [a date in] 2007 (as narrated by the Applicant) amount to a potentially lawful marriage or was it rather a ceremony which was a 'non-marriage' or a 'non-existent marriage"? If the former the court has jurisdiction to grant the order sought whereas, if the latter, no petition could issue.
6.  Counsel accepted that primary guidance could and should be found in three reported decision at first instance: AM V AM [2001] 2 FLR 6 (Hughes J, as he then was); GANDHI V PATEL [2002] 1 FLR 603 (Park J); and HUDSON V LEIGH [2009] 2 FLR 1129 (Bodey J). Although the legal reasoning is not affected by this, I need to bear in mind that each decision was given after a full hearing on oral evidence and not merely (as here) on submissions of counsel contained inside an afternoon. In other words I should be cautious in making factual comparison between those cases and this.
7.  That said, I find myself in agreement with the reasoning in those cases and, since each relies on what has gone before, I propose to focus my attention principally on Bodey J's judgment in Hudson v Leigh. The submissions of counsel were not designed to question the views of Bodey J but were focussed on the issue as to whether the facts of this case as recounted by the applicant would permit this court to grant the permission sought. The basic position (with which I agree) was stated by Bodey J thus –

"[73] So, in my view, the court must be able, in the rare cases where such a point arises, to rule that some questionable ceremony or event, whilst having the trappings of marriage, failed fundamentally to effect one, such that it neither needs nor is susceptible to a decree of nullity to determine its lack of legal status; i.e. to find in convenient shorthand that it is a 'non-marriage' or a 'non-existent marriage'. The cases cited above offer ample persuasive authority for such a concept and I am not persuaded that they were wrongly decided."

8.  However, it is one thing to identify an issue but quite another to define the line that divides one concept from the other. Indeed Bodey J was reluctant to offer any general definitions. As he says at paragraph 79 of his judgment –

"[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."

With the principles adumbrated in these cases well in mind it is necessary to turn to the evidence and to take account of what is said in the applicant's two witness statements.

9.  Mr. Sear, counsel for the Applicant, submits that the evidence permits the court to conclude that Applicant, Respondent and officiating Imam believed both that  a valid Islamic marriage was being contracted and that such a marriage would be valid in English Law; whether or not the Imam believed the latter, he appeared to represent it as so. The passages in her statements particularly relied upon are at paragraphs 5, 16 and 17 in her second statement –

"5. At the time, I believed both that the ceremony gave rise to a valid Islamic marriage and that a valid Islamic marriage was accepted as a valid marriage for the purpose of the law of England & Wales. I believe that the Respondent shared this belief that we both believed that the ceremony gave rise to a marriage which was valid in the eyes of the secular law of this country.

16. I understand that, broadly speaking, ceremonies of marriage according to Islam can take two forms … The second form is an Orfy (or Urfy) ceremony, which requires only two witnesses and a dowry. These are not generally registered, and there is no formal requirement that such a ceremony be conducted by an Imam. There is, however, a standard form of working (sic) which needs to be repeated by each party in the same way that this is done in an English church wedding: the parties each have to confirm that they take the other. Our wedding ceremony took this form.

17. …I considered that this was sufficient for us to be married for all purposes. I believed that the Respondent and the other people present (including the Imam) all felt the same. I was not, therefore, concerned that the ceremony was conducted in secret: many other members of the Respondent's family have also married in secret in order to stop family interference and public intrusion."

10.  Mr. Glaser, counsel for the Respondent, makes two submissions: first he contends that the Applicant's evidence even taken at its highest falls conspicuously short of establishing a potentially valid English marriage; and secondly he sets out in his written Note a series of matters (paragraphs 17-20 and schedule) which (it is said) cast such doubt upon the Applicant's credibility that this court should not in effect take her statements uncritically at their highest. Whilst I understand and acknowledge the considerable force of the points advanced by Mr. Glazer, I do not think it right to consider them on this application at this stage of the proceedings. There has been no investigation of them and indeed no opportunity for the Applicant even to consider them. In my judgment this particular application should be considered on the basis of the applicant's evidence alone; that that should be so is supported by the requirement to make this application without notice.
11.  The position then is this: if the court concludes this is a 'non-marriage' or a 'non-existent marriage', then no Petition can issue and these proceedings can only proceed under Schedule 1 of the 1998 Act; whereas if a Petition can issue, there will be further matters to be considered by Bodey J on 20th October 2011. If it is the case that a Petition could issue, I have discerned no proper grounds on which the court should as a matter of discretion refuse the particular permission sought at this stage.
12.  Thus the question remains whether the Applicant's evidence fairly read is capable of supporting a finding that this was potentially a 'valid' rather than a 'non-existent' marriage. In my  judgment there is an evidential basis adequate for the purposes of this application to establish a belief that the applicant and respondent believed both that they were contracting a valid Islamic marriage and that that would be recognised as such in English law. The evidence in relation to the Imam is much more tenuous. However, it must in the light of the parties' belief be a strong inference that he believed that he was conducting a valid Islamic marriage. There is no clear evidence one way or the other as to his belief (if indeed he had one) as to its effect in English law. In my view that is not fatal. What matters is that he believed he was conducting a valid Islamic marriage; that coupled with the belief of the Applicant and Respondent as to validity and recognition is in my judgment sufficient to allow the Applicant to present her Petition.
13.  I wish to stress that this conclusion is based solely on the evidence to be considered on this particular application. Whether (and if so, how) these matters should be further investigated (and if so, with what outcome) will be a matter for Bodey J to decide in due course. All this judgment does is for the reasons set out herein to grant permission as asked under FPR7/FD7A/ Paragraph 3.2.
14.  Accordingly I give leave to the Applicant to issue a Petition for Nullity without having to file a Certificate of Marriage. In those circumstances the parties have agreed that the costs of and incidental to this Application should be costs in the Nullity proceedings.