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.
“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.”
“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…”