Court of Appeal allows husband’s claims that his marriage was never valid

Divorce|Family Law|November 22nd 2012

In a recently published judgement the Court of Appeal has allowed the appeal of a Saudi man against a ruling that a ceremony at aLondon hotel was a valid marriage under English law.

The ceremony took place in 1994. According to Lord Justice Thorpe’s judgement, this “purported” to be an Islamic marriage, although the man was already married at the time, and the couple made no effort to comply with the requirements of English law. To quote Lord Justice Thorpe:

“….no attempt was made to comply with the Marriage Act 1949 to 1986 nor was any attempt made to supplement the hotel ceremony with a civil ceremony that complied with English law.”

The relationship between the man and his second wife came to an end in 2000, and the following year, the man obtained a ‘talaq’ Islamic divorce while back in Saudi Arabia.

Later the woman tried to apply for a financial settlement. She made this claim under section III of the Matrimonial and Family Proceedings Act 1984, even though the ceremony at the hotel was not recognized as a valid marriage under English law.

Part III, section 12 of this act states that:

“Where—

(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,

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

Years of legal wrangling followed. To quote Lord Justice Thorpe again:

“These parties have shown a disproportionate zeal for dispute. They have spent huge sums on litigation since December 2002, which is nearly a decade of strife. Quite apart from being wasteful of family money it is also wasteful of the stretched resources of our family courts. Whether exhausted or not it is high time that they laid down arms and compromised. If they need a mediator the Court of Appeal mediation scheme is wide open to assist them.”

Eventually the case reached the High Court in April this year, where Mr Richard Anelay QC, sitting as a High Court judge, ruled that since the talaq divorce met the requirements of section III, the woman was entitled to financial support under the Act.

Speaking on behalf of the husband, James Turner QC advanced the argument that, although there had been a divorce, an agreement on a form of financial settlement and also an agreement that the wife could issue her Part III application in England, in reality the Part III application could not go ahead because in order for it to do so, there had to have been a valid marriage, or at the very least a marriage that was capable of being declared void. In this case, there was no marriage at all.

It was a clever, compelling argument which on appeal, their Lordships at the Court of Appeal fully accepted. They agreed that on the specific facts of the case, the ceremony did not even create a void marriage. It was a “non” marriage.

Sitting with Lady Justice Black and Mr Justice Hedley, Lord Justice Thorpe ruled in the husband’s favour, saying the existence of a marriage recognized as legally valid or void was fundamental to the right to apply for a financial settlement under the Act:

“”It would be fanciful, and clearly contrary to policy, to suggest that a person without that foundation could acquire a right of application by virtue of the pronouncement of a talaq divorce in some other jurisdiction.”

However, we have previously considered other cases where failure to meet the requirements of English law did not affect the legitimacy of the marriage: In NA vMA (link) Mr Justice Moylam found there was a marriage.

Howevever, in the similar case of Lakrami v Dawami (link) Mr Justice Holman held there was not.

Their Lordships made it clear that the outcomes of such cases were “first instance” (initial) decisions and that each case depends on the particular facts.

Until the Court of Appeal issues further guidance on these issues, legal advice will remain uncertain.

Author: Stowe Family Law

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