In the judgment which accompanies this Press Release, the Court of Appeal sets out its reasons for refusing to recognise the marriage of the couple who, throughout the case, were identified as IC and NK.
The essential facts were not in dispute. IC is a young man aged 26. His parents originate from Bangladesh, although they have lived in England for many years. IC is a British subject and is domiciled in England. Sadly, he is autistic, and in no respect does he function above the level of a three year old. It was accepted on his behalf on all sides that in English law he lacks the capacity to marry and to consent to sexual intercourse.
In September 2006, IC’s parents arranged for him to be married to NK. The marriage took place over the telephone, while IC was in the UK and NK was in Bangladesh.
All the parties in the case were agreed that the marriage was valid according to Sharia law and the law of Bangladesh. It was also accepted that, under Sharia law, it had taken place in Bangladesh. The question for the English court was whether or not the marriage was entitled to recognition in English law. The judge in the High Court held that it was not, and the Court of Appeal has agreed with him.
The first reason which the Court of Appeal gives for refusing to recognise the marriage is that under English law, a man and a woman can only contract a valid marriage when both have the capacity to enter into a marriage according to the law of their respective domiciles (“the dual domicile rule”). Due to his disability, IC does not have the capacity in English law to enter into a marriage. He is simply unable to give a valid consent to marriage.
The second reason which the court gives is that it was clearly the intention of IC’s parents that he and NK should make their home in England and to apply for a visa to enable NK to join IC permanently here.
In some cases, the courts have recognised a foreign marriage on the basis that the law which applies to it is either that of the intended matrimonial home, or the country to which the marriage has the greater connection.
The Court of Appeal has decided that were either of these tests to be applied, the relevant law would still be English law, under which the marriage would not be entitled to recognition due to IC’s incapacity.
The Matrimonial Causes Act 1973 (MCA 1973) designates a marriage which has been celebrated without the valid consent of one of the parties “voidable” rather than “void”. A void marriage is one which is as though it had never been. A voidable marriage remains valid up until the time it is annulled by a decree of nullity, and even after such a decree has been pronounced, the marriage will still be considered valid for the period when it was in existence.
The Court of Appeal has rejected the argument that it is bound to recognise the marriage of IC and NK on the ground that it is “voidable” under MCA 1973. The mere fact that, as a matter of domestic law, a marriage celebrated abroad is voidable rather than void does not, in the Court’s view, entitle it to recognition as a valid foreign marriage under English law.
Most marriages which are celebrated abroad and which are valid according the law of the country in which they are celebrated are entitled to recognition in English law. This marriage is an exception, for the reasons set out above.
The court also did not accept that the actions of the local authority; (1) in seeking to care for IC as an incapacitated adult; and (2) in opposing his marriage to NK constituted breaches of IC’s human rights under ECHR Articles 8 (the right to respect for private and family life) and 12 (the right to marry).
There will be a full hearing before a High Court judge in August to decide IC’s future, and where it is in his best interests to live.
This Press Release is not part of the Court’s judgment. The full judgment is available free of charge on the BAILII website.
Notes to Editors
This judgment was handed down by the Court of Appeal (Civil Division) on 19th March 2008. The composition of the bench for the appeal was Lord Justice Thorpe, Lord Justice Wall and Lady Justice Hallett.
Ends
