Judge says courts cannot declare teenage bride’s marriage invalid

Children|Family|News|November 19th 2013

A High Court judge has told a local authority that the law forbids him from declaring the marriage the marriage of a teenage girl invalid at its outset.

In A Local Authority v X and Another, the daughter of parents who had emigrated from Pakistan to the UK was taken to the country at the age of 14 by her father, and while there married a 24 year old man.

The girl, called ‘X’ in legal documents, fell pregnant and her baby was born back in the UK. Her local authority launched care proceedings for both the girl and her baby. As the care proceedings progressed, the authority and the girl’s legal guardian also applied for a ‘declaration of non-recognition’ of the girl’s marriage in Pakistan.

At the High Court, Mr Justice Holman noted that the girl’s ‘domicile’ (residence for legal purposes) was the same as that of her father at the time of her birth in 1997.

He continued:

“Under the law of England and Wales the minimum age of both parties to a valid marriage is governed by the Marriage Act 1949 if either party is domiciled in England and Wales on the date of marriage. Section 2 of the Marriage Act 1949 provides as follows: “A marriage solemnised between persons either of whom is under the age of sixteen shall be void.” ”

Therefore, the judge declared:

“On the date of the marriage ‘X’ was under the age of sixteen. In fact, she was still only fourteen. It follows, therefore, as a matter of mixed fact and law, that the marriage in question is, so far as concerns the law of England and Wales, void.”

However, section 58 of the Family Law Act 1986 also declares:

“No declaration may be made by any court… that a marriage was at its inception void.”

Mr Justice Holman  explained:

“Note that that subsection contains an absolute statutory prohibition on any court making a declaration that a marriage was at its inception void….It, therefore, absolutely forbids the making of a declaration, even in the so-called inherent jurisdiction of the High Court, to the effect that a marriage was at its inception void.”

The provision was included to prevent the use of the Family Law Act 1986 to circumvent the earlier Matrimonial Causes Act 1973.

The judge quoted Mrs Justice Baron’s observation that such distinctions can be “extremely fine”, and suggested a resolution to the issue:

“In the present case, as I have said, this marriage is a void one. If ‘X’ chose to present a petition for nullity, which she has ample age and mental capacity to do, being now aged almost seventeen and of normal maturity and intelligence, then (if satisfied as to the facts) the court could and would pronounce a decree of nullity on the ground that the marriage is void.”

He added:

“I do understand and have sympathy with the point and position that it might be particularly defiant by ‘X’ of her family for her herself to initiate proceedings for a decree of nullity, although she now has little contact with most members of her family. The reality is that sooner or later she needs fully to resolve her legal status and to face up to the obviously necessary step of obtaining a decree of nullity…”

Author: Stowe Family Law

Comments(12)

  1. Andrew says:

    What were the parties playing at? I speak fom professional experience when I say that s.58 would not preclude a declaration that the marriage vas void the day after it was celebrated. I have seen that done!

    But as things are Holman J was right and with all due respect Baron J in the earlier case which he cited was wrong. Nullity is a matter for the parties and not for anybody else, no matter how well-intentioned.

    Curiously, the court (and not just the FD) can make a finding of fact that a marriage was void – not a declaration – in any proceedings (such as those concerning inheritance) even after the parties are dead. If T makes a will leaving his property to his issue born in wedlock – and that is perfectly lawful – and then outlives his wife, then after his death those entitled if there is no such issue can claim the property if they can prove e.g. that either party was under age or already married.

    They cannot, however, set up any argument that the marriage was voidable – only the parties can do that, and only whle both are living.

    All a bit Victoria, isn’t it?

  2. Tulsa Divorce Lawyer Matt Ingham says:

    I strongly disagree with Justice Holman’s interpretation of Section 58.

  3. Andrew says:

    With respect, Matt, your views on the interpretation of section 58 are as helpful as mine or Marilyn’s on the interpretation of the laws of your State. Which means not very. Unless of course you are qualified in this jurisdiction too.

    • Marilyn Stowe says:

      Dear Andrew
      I disagree. I’m always interested in the views of other practitioners from other countries.
      Regards
      Marilyn

  4. Luke says:

    ===========================
    ‘In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave permanently (i.e., if that person has moved to a different state, but has not yet formed an intention to remain there indefinitely).’
    ==========================

    So, she was domiciled in England and Wales and the marriage is therefore non-existent. The Judge has taken a – to my mind – strange view of the law to say this cannot be done. It seems to me that the marriage never actually legally took place because the criteria for marriage (both parties being 16) was not met. That to me means the inception of the marriage did not actually ever occur.

    This is a perfect example of what I mean when I say that our legal system often only follows what they think is the strict letter of the law (even though in this case it appears to me to be misinterpreted) instead of delivering a JUST judgement.

  5. Andrew says:

    The judge gave the words of the Act their plain meaning – you may not like it, Luke, but they mean what they say. And for a reason; if you want a decree of nullity there is a procedure for it, and it can lead to financial consequences. In that case it probably won’t, if every she petitions she will jsut want to be shot of him, but in others it might and the procedure must not be circumvented.

    Above all it will be her choice to petition or not and it is not for the court or the local authority to take that decision for her. This is a good judgment in favour of personal responsibility and autonomy.

  6. Stephanie Bamberger says:

    I agree with Matt on this. While I don’t practice in the UK, no California court would force a girl marred (against her will?) at 14 to stay married. Our court would grant an annulment as she was underage at the time of the marriage, period, unless there was a prior court order granting permission to marry. California Family Code sections 302 & 2210(a).

    • Marilyn Stowe says:

      Dear All
      To clarify, I think the judge was actually saying that in law he couldn’t make the declaration but a petition for nullity of marriage should have been brought, given there was no question the marriage was void. It’s a procedural issue.
      Regards
      Marilyn

  7. Andrew says:

    OK Marilyn, it;s your blog!

    “It’s my blog and I’ll say what I want, to, say what I want to, say what I want to . . .”

  8. Andrew says:

    Stephanie: grant an annulment to whom? This was the local council applying for it, what you would call the County or the City. All the judge decided was that when she is a bit older she can make her won application if she wants.

  9. Stephanie Bamberger says:

    Andrew, yes, actually a 3rd party can step in (although it is usually the party who asks) to request an annulment. The particular code section for an underage marriage annulment provides for this. There is case law which discusses who has standing to make the annulment request – the most famous recent case involved Richard Pryor’s daughter who tried to get an annulment of his marriage AFTER his death. That is an interesting case & you can probably find it doing a Google search.

  10. Andrew says:

    Interesting. There is an odd distinction in this jurisdiction – as I said further up, a VOID marriage (bigamous, under-age) can be found as a fact to be void in other parties’ litigation at any time – even after the couple are both dead. But a VOIDABLE marriage cannot be annulled except in proceedings between the parties while they are both alive.

    The reason is that voidable marriages are only those which one party cannot or will not or at any rate did not consummate; or in which consent was lacking; or in which one party was suffering from a communicable STD at the time of the ceremony and the other did not know; or in which the woman was pregnant by another man at the time of the ceremony and the man did not know. These are all matters of a personal nature and only the other party can decide to apply to annul the marriage, or not to, and in which if s/he applies the other party’s evidence can only be given personally.

    (At college I was given the mildly offensive but helpfully rhythmic mnemonic for these cases: CAN’T, WON’T, DIDN’T, NUTS, POX, PREGNANT!)

    Under no circumstances whatever can another person or the local council apply for the annulment of a voidabe marriage.

    The “marriage” in this case appears to be void for nonage and a court could so find as a fact if it were relevant to succession to property; but not by way of declaration, except on her petition, and that was the judge’s (correct) ruling. As I said, he could, if asked, have declared it void the day after the ceremony – but I think that in his discretion he would probably have declined that too. He rightly takes the view that it is for her to decide in due course.

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