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||Neutral Citation Number:  EWCA Civ 198
||Case No: B4/2008/0088
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
RODERIC WOOD J
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE WALL
LADY JUSTICE HALLETT DBE
|1st & 2nd Appellants
||CITY OF WESTMINSTER SOCIAL & COMMUNITY SERVICES DEPARTMENT
(a protected party, by his litigation friend the Official Solicitor)
Mr J Luba QC & Mr S Knafler (instructed by Messrs Bennett Wilkins) for the Appellants
Mr A Verdan QC (instructed by Messrs Creighton & Partners) for the First Respondent
Miss A Ball QC & Mr A Bagchi (instructed by Messrs Irwin Mitchell) for the Second Respondent
Hearing dates: 5th February 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Thorpe:
- The family at the heart of this appeal are British nationals domiciled and habitually resident in this jurisdiction. However the family is of Bangladeshi origin and only IC was born in this country.
- IC was born on the 11th October 1981 and is sadly handicapped. He suffers from severe impairment of intellectual functioning and autism. Expert evidence before the court is to the effect that in no area of his development does IC currently show the skills that are to be expected of an average three year old. Indeed in many areas he functions substantially below this mark. He needs very considerable support in all areas of his life and cannot be left alone without risk. He is highly suggestible and vulnerable. He receives home care five mornings a week before he attends a day centre. Additionally he receives a high level of respite care. The local authority has been involved in supporting and protecting him since he was four years of age.
- The role of marriage in the life of one so handicapped is inconceivable in our society. Furthermore as a matter of law marriage is precluded. IC lacks the fundamental capacity to marry. However the marriage is not precluded in Bangladesh.
- The City Council had raised the issue of marriage with IC's parents in the autumn of 2006. There was clearly no agreement that IC could not and should not ever marry. Accordingly on the 23rd April 2007 the Local Authority applied under the inherent jurisdiction of the High Court for:-
"A declaration as to the capacity of IC to marry. The local authority does not consider that IC has the mental capacity to marry."
The application also sought declarations in relation to IC's circumcision.
- The court's jurisdiction to prohibit the marriage of an incapacitated adult is not in question. However the response from IC's parents solicitors contained in a letter of 2nd May 2007 was to the effect that IC was married in a Muslim ceremony which took place by telephone on or about the 26th August 2006. The telephone link was between IC in this jurisdiction and a bride, NK, chosen by his parents who was in Bangladesh. Later the date of the telephonic marriage was shifted to 3rd September 2006.
- This development finds its reflection in an order made by Munby J on 22nd November 2007. He settled the issues to be decided at a hearing fixed for 12 – 14 December 2007. The issues were set out in a schedule to the order and were as follows:-
"1. Does IC have the mental capacity to consent to
b) sexual relations
2. Is IC lawfully married
a) in Sharia Law
b) in Bangladesh
c) in English civil law?
3. If IC is lawfully married either in Sharia Law or in Bangladesh, is that marriage recognised in English Law?
a) Does the "dual domicile" or "most real and substantial connection" principle apply?
b) What are the consequences of a finding that either applies?
c) Are any further proceedings necessary?
4. Does the Court have jurisdiction to prevent the family changing IC's domicile or taking him to live in Bangladesh?
5. Should the court refuse as a matter of principle to exercise the best interests jurisdiction in this case?
6. What is the correct test/approach for establishing IC's best interests?
7. What, if any further evidence/procedures are appropriate?
8. What relief ought to be granted at this stage?
9. What is to be the ambit of the second stage of the hearing?"
- The hearing in mid December was conducted by Roderic Wood J who handed down a comprehensive reserved judgment dated the 21st of December. The order that he made (perfected on 21st January 2008) does not relate to the list of issues settled by Munby J precisely but it contains a number of declarations as follows:-
"a. IC is domiciled in England;
b. IC lacks the capacity to conduct litigation;
c. IC lacks the capacity to marry;
d. IC lacks the capacity to consent to sexual relations;
e. IC lacks the capacity to consent to circumcision;
f. circumcision would not be in his best interests;
g. the "marriage" of IC and NK on or about the 3 September 2006 took place in Bangladesh and is a valid marriage in Muslim law and in Bangladesh civil law;
h. the "marriage" of IC and NK on or about 3 September 2006 is not valid under English law."
- Following the declarations orders were made to ensure that IC could not be brought into contact with his bride, NK, pending trial or a full hearing at which the judge would determine all outstanding best interest issues.
- However on the 11th January 2008 an Appellant's Notice was filed, particularly attacking the judge's declaration (h) and further challenging the court's jurisdiction to prevent IC's permanent removal to Bangladesh and more generally seeking the cessation of the proceedings to consider best interest issues.
- On the 24th January the application was listed for oral hearing on notice on 5th February with appeal to follow if permission granted. On the same day Roderic Wood J gave further directions for the conduct of the proceedings, particularly putting the final hearing back to August 2008.
- The appellants grounds of appeal simply contend that the judge was wrong in law to declare that IC's marriage was not valid in English law and that the judge was wrong in law to have assumed jurisdiction in relation to IC's future protection and management. The appellant's case as argued by Mr Jan Luba QC was advanced on three grounds: first the validity of declaration (h), second the court's jurisdiction to prevent IC's removal to Bangladesh and third, if such a jurisdiction exists, how is it to be exercised?
- Although the appeal was argued extremely skilfully by Mr Luba there was little that he could make of the second and third grounds. He suggested that the commencement of the Mental Capacity Act 2005 introduced an exhaustive statutory code which excluded the court's inherent jurisdiction. He advanced no authority for that proposition and the decision of Munby J in Local Authority X v MM & KM  EWHC 2003 (Fam) indicates otherwise (see in particular paragraphs 87, 111 and 167).
- Within the Act itself the court has wide powers derived from sections 15 – 17 in particular. Of obvious relevance is section 17(1)(a) in these terms:-
"The powers under section 16 as respects P's personal welfare extend in particular to – (a) deciding where P is to live;"
In my judgment that clearly empowers the judge to prevent an exeat to Bangladesh where, as some of the evidence here suggests, it would be contrary to the health and welfare of the vulnerable adult.
- Mr Luba relies upon the commentary in the 14th Edition of Dicey, Morris & Collins on the Conflict of Laws (hereinafter Dicey) in paragraph 6-108 to this effect:-
"Although the Mental Health Act 1983 made provision for dealing with the property and affairs of a mentally disordered person, and these provisions are further developed in the Mental Capacity Act 2005, there is no power to determine the domicile of such a person. Under the 2005 Act the Court of Protection is given power to take decisions on behalf of the person lacking capacity in respect of his property and affairs, and the Act contains a partial list of the types of decision covered by this power. A decision as to where a person is to live in the immediate future is within the scope of the power, but it is thought that a decision about permanent residence, such as is required for the animus manendi, is not."
- I read that paragraph as addressing the court's power to determine domicile and such limitation as there may be does not in my opinion circumscribe the court's jurisdiction to determine the residence of the vulnerable adult where on the facts his protection or the consolidation of his welfare so require.
- I am even less persuaded by Mr Luba's submission under ground three. Mr Luba's basic submission is that the High Court judge is only empowered to interfere with the family life of the incapacitated adult insofar as interference is necessary to safeguard from harm. I appreciate that this submission can be related to paragraph 6 of the preliminary issues settled by Munby J. However the submission cannot be related to anything very specific in the order of the 21st of December and the only paragraphs criticised by Mr Luba in the judgment were paragraphs 120 and 150. I need not recite those paragraphs. It is sufficient to say by way of summary that there is nothing in them open to criticism and each demonstrates the judge's cautious approach to the exercise of the jurisdiction to interfere with family life for the protection of IC.
- For all those reasons I would refuse permission to appeal on grounds two and three.
- Ground 1 raises difficult questions and I say at once that Mr Luba's powerful and persuasive submissions demonstrate that the form of declaration (h) and the judge's reasoning on some points are unsustainable.
- Let me first summarise how the judge reasoned his pathway to the declaration which he made in paragraph 108 of his judgment and which appears as (h) in the order. In paragraphs 72 – 73 he considered and applied the dual domicile rule that appears in Dicey as Rule 67. In support of his application of the rule in the present case he cited and relied upon the decision of Munby J in X City Council v MB, NB & MAB  2 FLR 968. Next he considered the alternative approaches suggested by Lord Simon of Glasedale in Vervaeke v Smith (Messina and A-G intervening)  1AC 145. In paragraph 83 he then concluded:-
"It thus seems to me that, subject to the argument I shall consider below, under
i) the dual domicile test,
ii) the matrimonial home test, and
iii) the real and substantial connection test,
the answer in this case is going to be the same, namely that I would need to consider the validity of the marriage in relation to IC's capacity to consent in English law."
- The judge proceeded then to the parents' counsel's final submission founded on the provisions section 12(c) of the Matrimonial Causes Act 1973. That Act was a consolidating Act and the relative statutory provisions had first emerged in the Nullity of Marriage Act 1971. The essential submission advanced by Mr Knafler below and by Mr Luba before us is that Parliament expressly provided for circumstances such as arise in this case in section 12(c) and (d) which read as follows:-
"(c) that either the party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from mental disorder within the meaning of [the Mental Health Act 1983] of such a kind or to such an extent as to be unfitted for marriage;"
- This was part and parcel of a categorisation of marriages that might be annulled into those void ab initio (section 11) and those merely voidable (section 12). The previous law was clear that a voidable marriage was a valid marriage unless and until annulled (see De Reneville De Reneville  P 100). That the Nullity of Marriage Act 1971 had intentionally brought about a fundamental shift in the law relating to marriages vitiated by an absence of consent is illustrated by the decision of this court in Re: Roberts deceased, Roberts v Roberts  1WLR 653. In the course of his very clear judgment Walton J stated at 654:-
"One of the curiosities of the law of marriage is that, apparently, down to 1971 lack of consent or absence of consent made a marriage void and not voidable."
Having then referred to the provisions of the Nullity Act 1971 he stated:-
"However, Parliament has deliberately chosen to alter the law and make lack of consent, on whatever ground, a ground merely upon which a marriage is voidable."
- This analysis was confirmed by the judgments of Buckley LJ and Goff LJ in this court.
- Roderic Wood J rejected this submission by citing the judgment of Munby J in Sheffield City Council v E & Another  Fam 326. In so doing he rejected the submission of Mr Knafler that the conclusions expressed by Munby J were per incuriam.
- Finally Roderic Wood J refused recognition of the marriage on the grounds of public policy. He said in paragraph in 106:-
"The clear intention of Parliament over many generations of legislation has been to protect vulnerable members of society including minor children and those suffering from unsoundness of mind. I would be failing in my responsibility to IC if I did not afford him the same right as is accorded to others suffering a disability, even respecting as I do the right of other religions and cultures to address matters differently."
- In my judgment Roderic Wood J wrongly rejected Mr Knafler's submissions founded on section 12(c) of the Matrimonial Causes Act 1973. The judgment and reasoning of this court in Re: Roberts deceased, Roberts v Roberts (cited above) is clear and binding on this court. I am reinforced in that view by a relevant provision that was not drawn to the attention of Roderic Wood J, namely sections 55 – 58 of the Family Law Act 1986. These provisions strongly support the appellant's analysis. They did not feature in Mr Luba's skeleton argument and he is indebted to the skeleton argument of Miss Ball QC and Mr Bagchi instructed on IC's behalf by the Official Solicitor. The purpose of Part III of the 1986 Act, dealing with declarations of status, was to implement the proposals in the Law Commission's paper Declarations in Family Matters (Law Com. No. 132, February 1984). The report recommended "A new legislative code, based on consistent principles, should replace the existing hotchpotch of statutory and discretionary relief available in matters of matrimonial status, legitimacy, legitimation and adoption."
- Section 55(1) itemises the declarations as to marital status which the court may make. The first of these is "a declaration that the marriage was at its inception a valid marriage". What is significantly absent is a sub-paragraph permitting a declaration that the marriage was at its inception an invalid marriage. That omission was very deliberate as we may see from section 58(5) which states:-
"No declaration may be made by any court, whether under this part or otherwise –
i) that a marriage was at its inception void;"
The following subsection provides that:-
"Nothing in this section shall effect the powers of any court to grant a decree of nullity of marriage."
Thus the combined effect of these provisions is to ensure that the only route to a judicial conclusion that a marriage was void at its inception is a petition for nullity. An alternative route, namely an application for a declaration, was plainly proscribed.
- Had Roderic Wood J had his attention drawn to the provisions of the Family Law Act 1986 I hazard that he would not have made the declaration that he did.
- Mr Luba has attacked the judge's other reasoning. He submits that Rule 67 of Dicey is too widely stated or alternatively has not been properly understood by the judge. Rule 67 is thus stated:-
"RULE 67 –As a general rule, capacity to marry is governed by the law of each party's antenuptial domicile.
(1) Subject to Exceptions 1, 2 and 3 below, a marriage is valid as regards capacity when each of the parties has, according to the law of his or her antenuptial domicile, the capacity to marry the other.
(2) Subject to Exceptions 1,4 5 and 6 below, a marriage is (normally) invalid when either of the parties lacks, according to law of his or her antenuptial domicile, the capacity to marry the other."
The exceptions referred to above are not relevant for the purposes of the present appeal. Mr Luba sought to submit that the rule has its roots in the decision in Brook v Brook (1861) 9 HLC 193 (followed in Pugh v Pugh  P 482) and is therefore limited to those cases in which the marriage was prohibited in the jurisdiction of the domicile of one of the parties.
- I do not accept that submission. In my judgment the rule is of general application. However there is authority in our courts to the effect that there are alternative bases for the recognition of a foreign marriage that would not be recognised on the application of the dual domicile rule. These alternative bases have emerged as an expression of the general policy to recognise rather than to reject a marriage recognised as valid in some other sovereign state. Lord Simon of Glasedale in his speech in Vervaeke v Smith  1 AC 145, at 165-166 suggested that a marriage falling foul of the dual domicile rule might be recognised as valid if the parties have capacity under the law of the country of their intended matrimonial domicile or under the law of the country with which the marriage has its most real and substantial connection.
- I do not think that this enlargement achieves the result for which Mr Luba contends. I would not differ from the judge's view expressed in paragraph 83 of his judgment.
- I would be equally supportive of the judge's introduction of the public policy considerations. Not every marriage valid according to the law of some friendly foreign state is entitled to recognition in this jurisdiction. In Cheni v Cheni  P. 85 Sir Jocelyn Simon P refused to withhold recognition on the ground of public policy. However he clearly defined the possibility of such an outcome when he said:-
"If domestic public policy were the test, it seems to me that the arguments on behalf of the husband, founded on such inferences as one can draw from the scope of the English criminal law prevail. Moreover, they weigh with me when I come to apply what I believe to be the true test, namely, whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law. In deciding that question the court will seek to exercise commonsense, good manners, and a reasonable tolerance"
- In the present case it is common ground that IC lacks the capacity to marry in English law. Even having regard to the relaxations that have permitted marriage to be celebrated in a variety of places and by a variety of celebrants, it is simply inconceivable that IC could be lawfully married in this jurisdiction. There is much expert evidence to suggest that the marriage which his parents have arranged for him is potentially highly injurious. He has not the capacity to understand the introduction of NK into his life and that introduction would be likely to destroy his equilibrium or destabilise his emotional state. Physical intimacy is an ordinary consequence of the celebration of a marriage. Were IC's parents to permit or encourage sexual intercourse between IC and NK, NK would be guilty of the crime of rape under the provisions of the Sexual Offences Act 2003. Physical intimacy that stops short of penetrative sex would constitute the crime of indecent assault under that statute. IC's parents, perhaps understandably, cannot accept the court's statutory and inherent powers to protect IC. Their engineering of the telephonic marriage is potentially if not actually abusive of IC. It is the duty of the court to protect IC from that potential abuse. The refusal of recognition of the marriage is an essential foundation of that protection. Miss Ball has suggested that the public policy exception is not easily illustrated in the authorities. In my judgment the refusal of recognition in this case is justified even if not precedented. Accordingly I would grant permission to appeal on ground one and allow the appeal only to the extent of varying the language of the order of 21st December. In place of the existing declaration (h) I would propose a declaration that the marriage between IC and NK, valid according to the law of Bangladesh, is not recognised as a valid marriage in this jurisdiction.
- There is one important matter which was left undecided by the judge, and not debated in this court, namely the identification of the lex loci celebrationis, the place at which as a matter of law the marriage was celebrated.
- Expert evidence was given by Professor Menski, Professor of South Asian Laws at the School of Oriental and African Studies in the University of London. His evidence and conclusions were unchallenged. As to the marriage this was his evidence:
"The "marriage" needs to be contracted in an "Islamically accepted form, which in this case he finds it to have been, even though the bride, the Khazi officiating, many of her relatives as well as IC's relatives, in particular his father, were in Bangladesh, and IC was with his siblings and an Imam from a local mosque in London, there being speaker-phone communication between the two parties. This form of celebration of marriage (at the telephone) is increasingly common and accepted as entirely valid."
- As to the communication between those in this jurisdiction and those in Bangladesh these were the judge's findings:-
"Irrespective of IC's ability or inability to consent, the father of IC (his marriage guardian) "may legitimately act in the best interests of his Ward to arrange, solemnise and contract a marriage for that individual which binds that individual and the spouse in all respects …..".
It is said that in the course of the marriage ceremony IC said the word "yes" in ostensible consent to his marriage, although his overall mental capacity should not be ignored, included within which is the possibility of coaching, or, more probably than not, echolalia from which he suffers, leading, depending on the phrasing of the question put to him, to such an answer. Irrespective of the status of that "yes" it is, in this case, the father's agreement to the marriage as the lawful marriage guardian of an incapacitated son which is sufficient under the provisions of traditional Islamic law to constitute an appropriate consent."
- As to the lex locis celebrationis the judge noted that it was "the more or less agreed position at the Bar that the lex locis celebrationis was Bangladesh." That agreement was based on a number of features including the presence of a Khazi, the presence of the bride and significant numbers of her family at that venue, which was the father's home in Bangladesh, the fact that the certificate of marriage was issued by that Khazi who also officiated at the ceremony, and to whom the respective consents (that of the wife, of IC's marriage guardian, and possibly of IC himself in the form of the word "yes") were all given. The dowry was paid over in Bangladesh, and effectively it is asserted the contract was carried out there. This is despite the presence in London of the groom, his siblings and an Imam.
- The judge recognised that it could be argued that the celebration of marriage had occurred in both countries, but was inclined to accept the agreement of the Bar that it is more probable than not that the celebration of marriage occurred in Bangladesh. He also recognised that had England been the place of celebration, it would not have been lawful, because it would have been in breach of the provisions of the Marriage Act 1949, and the Marriage Act 1994.
- Clearly in the present case if England was in law the place of celebration then there would be no marriage since there would have been no compliance with the requirements of our law.
- It is unfortunate that this important issue was dealt with below without the investigation it required. So to say is not to criticize either of the respondents who no doubt advisedly selected the ground upon which to deploy their cases.
- In the case of marriages contracted by a trans-national telephone call the ascertaining of the place of celebration is likely to involve difficult problems of great legal significance. There are public policy issues. The French Civil Code was amended in 1993 to add a new Article 146(1): "The marriage of a French person, even where contracted in a foreign country, requires his presence." The reason for this was to deal with problems arising from marriages of convenience celebrated by proxy in Morocco and Algeria.
- One obvious reason why the place of celebration may be legally significant is that one contracting party may escape the rules as to the formation of marriage applicable in that jurisdiction. More than 60 years ago it was decided that recognition of a marriage by proxy in a foreign country was not contrary to English public policy: Apt v Apt  P 83 (CA). But these courts have not had to consider a marriage by telephone with one spouse in country A and the other in country B. It is for English law to determine where is the place of celebration. It may be in country A, or in country B. Some foreign authors suggest, in the case of proxy marriages, that it should be regarded as celebrated in both countries, thus requiring compliance with the formalities of each: Rabel, Conflict of Laws, 2nd ed 1958, vol 1, pp 243-244.
- In this court there was no investigation nor any argument as to the place of celebration. I would not wish to be taken to endorse whatever consensus was reached between the parties to the effect that the marriage was celebrated in Bangladesh. The important questions of law and public policy which arise must be left for decision in a case in which they arise and in which there is adequate evidence of the foreign law relating to the incidents of the marriage ceremony.
Lord Justice Wall:
- I have had the advantage of reading Thorpe LJ's judgment in draft. Like him, I would refuse permission to appeal on what he has identified as grounds 2 and 3 of the grounds of appeal: like him, I would grant permission to appeal on ground 1, but would dismiss the appeal. I add a separate judgment of my own; (1) because, in my judgment, ground 1 raises a point of considerable general and public importance; and (2) out of deference to the extremely able submissions made to us by Mr. Jan Luba QC on behalf of the appellants.
- The appeal throws up a profound difference in culture and thinking between domestic English notions of welfare and those embraced by Islam. This is a clash which, in my judgment, this court cannot side-step or ignore. To the Bangladeshi mind, as admirably and clearly explained in the written evidence of the jointly instructed expert witness Dr. Werner Menski, Professor of South Asian Law at the School of Oriental and African Studies in the University of London (substantial extracts from which are cited in the appellants' skeleton argument) the marriage of IC is perceived as a means of protecting him, and of ensuring that he is properly cared for within the family when his parents are no longer in a position to do so.
- To the mind of the English lawyer, by contrast, such a marriage is perceived as exploitative and indeed abusive. Under English law, a person in the position of IC is precluded from marriage for the simple reason that he lacks the capacity to marry. No English Registrar of marriages could or would have contemplated celebrating a marriage between IC and NK, for the simple reason (amongst others) that no such Registrar could have issued a certificate of satisfaction that there was no lawful impediment to the marriage. Furthermore, as IC is incapable of giving his consent to any form of sexual activity, NK would commit a criminal offence in English law by attempting to have sexual intercourse, or indeed having any form of sexual contact with him.
- To the mind of the English lawyer, the marriage is also exploitative of NK, although the evidence is that she entered into it with a full knowledge of IC's disability. The English lawyer inevitably poses the rhetorical question: what young woman of marriageable age, given a free choice, would ally herself for life in marriage to a man who, on the evidence, may be disturbed by her introduction into his life; for whom she will have to care as if for a child; with whom, on the evidence, she will be unable to hold a rational conversation, let alone any form of normal social intercourse; by whom she cannot have children, and indeed with whom any form of sexual contact will, under English law, as already stated, constitute a criminal offence?
- In my judgment, this is a case about recognition of the marriage, not about its validity. In my judgment, the fundamental questions raised by the appeal are; (1) whether or not the English Court has jurisdiction to refuse to recognise the marriage in fact celebrated between IC and NK; and (2) if so, whether it should exercise that jurisdiction.
- I have come to very clear conclusions. They are that English law applies, and that this marriage is not entitled to recognition in English law. In other words, the answer to each of the questions posed in the preceding paragraph is undoubtedly "yes". The purpose of this judgment is to set out my reasons for reaching these conclusions.
- In what follows, I am, speaking for myself, content to adopt the consensus reached at the bar (and reflected in the judge's seventh declaration) that, on the facts of this case, the marriage between IC and NK took place in Bangladesh, and that it is a valid marriage both in Shariah law and in Bangladeshi civil law. There was, of course, no appeal against this part of the judge's order. The evidence was that IC remained in England and participated in the ceremony over the telephone. Once again, a marriage celebrated in this fashion is wholly alien to the English concept of a marriage ceremony leading to a valid marriage. Moreover, from an English perspective, the level of IC's disability, and the fact that he suffers from echolalia (that is, he often repeats the last word spoken to him, without understanding its meaning) negates any meaningful participation in the ceremony on his part.
- I therefore note the reservations expressed by Thorpe LJ in paragraphs 36 to 42 of his judgment, and in another case would welcome the point being fully argued. In the instant case, however, the judge's acceptance of Bangladesh as the place in which, as a matter of law, the marriage was celebrated – together with the validity of the marriage in Bangladesh - does not affect either my reasoning, or the clear conclusions which I have reached.
The undisputed underlying facts
- Thorpe LJ has, of course, already set out the facts. Nonetheless, it is, I think, worth bearing in mind throughout the severity of IC's disability and the extreme nature of the sad factual matrix underlying this appeal. This aspect of the case is summarised in paragraph 5 of the skeleton argument put forward by the local authority, which is itself based on overwhelming and incontrovertible expert evidence:-
"IC was born on 11 October 2001 and so is aged 26. He normally lives with his parents, KC and NNC. IC suffers from severe impairment of intellectual functioning and autism. Dr. Khouja (a jointly instructed consultant psychiatrist) says that in no area of his development does IC currently show the skills that one would expect of an average three year old and in many areas functions substantially below this. He needs very considerable support in all areas of his life and cannot be left alone without risk. He is highly suggestible and vulnerable. He receives home care five mornings a week before he attends a day centre five days a week and also receives a high level of respite care. He has been known to Social Services since he was four."
- I respectfully agree with Thorpe LJ that for an adult with such disabilities, marriage is, to English eyes, inconceivable.
- Equally, were the Official Solicitor to take proceedings on behalf of, or in the name of IC to annul the marriage, I can, speaking for myself, see no defence to a petition under section 12(c) of the Matrimonial Causes Act 1973. I will return later in this judgment to the effect of that section on the court's jurisdiction not to recognise the marriage.
Grounds 2 and 3 of the grounds of appeal
- Not even Mr. Luba's able advocacy on behalf of IC's parents could persuade me that any of these grounds was arguable. I am in no doubt at all that the inherent jurisdiction of the High Court to protect the welfare of incapable adults, confirmed in this court in Re F (Adult: Court's Jurisdictions)  Fam 38 survives, albeit that it is now reinforced by the provisions of the Mental Capacity Act 2005 (the 2005 Act). I am also in no doubt that a combination of the inherent jurisdiction and the provisions of the 2005 Act is apt to confer jurisdiction on the High Court to make orders about where IC should live, including the decision as to whether or not it is in his interests to go and live in Bangladesh. Mr. Luba's alternative propositions, based on his default position that the jurisdiction existed, seemed to me equally unarguable.
- The judge's approach to the prospective exercise of his jurisdiction is contained in paragraphs 110 onwards of his judgment. At paragraphs 119 to 121, having cited extensively from the decision of Munby J in Re PS (An adult) [ 2007] EWHC 623, the judge says:-
"119. I respectfully agree with the observations of Munby J, and, where it is necessary, lawful and proportionate I consider that this court can exercise its inherent jurisdiction in relation to mentally handicapped adults alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the Statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the Statute or any supplementary regulatory framework
120. When considering the issue of the court's powers (either under the 2005 Act or under the inherent jurisdiction) to inhibit the removal of IC from the jurisdiction, and thus to intrude upon the Article 8 rights which he has, and which his parents and siblings also have, under the Convention it is my judgment that this court should be extremely cautious before making an order the effect of which is to inhibit, or at times prohibit (when the return to Bangladesh either temporarily or permanently) the enjoyment of family life and the continuance of his residence with them, but is not prevented from so doing where the circumstances demand it for the protection of the vulnerable.
121. It is the submission of Mr. Knafler (counsel for the parents) that the Mental Capacity Act provides a statutory code of such a comprehensive and complex nature that it has impliedly negated the inherent jurisdiction of the High Court as exercised under common law. He submits that if here is a gap in the legislation, the common law should not step in to fill it. No part of the 2005 deals with the issue of preventing the mentally incapacitated person from leaving the country. I have already given my view on that passage of the Guidance issued pursuant to the provisions of sections 43 and 44 of the Act, and that in my judgment, save where to do so would be demonstrably inconsistent with the will of Parliament, the inherent jurisdiction remains alive, in appropriate cases, to meet circumstances unmet by the scope of the legislation. That is not, to state the obvious, an invitation to a court so to do unless it is lawful, necessary and proportionate so to do."
- In my judgment, the judge's approach in these paragraphs, and in this section of his judgment generally, cannot be faulted, and any appeal based on grounds 2 and 3 would stand no reasonable prospect of success. Furthermore, in my judgment, any such application for permission to appeal is plainly premature. It will be for the court at the substantive hearing to work out, relative to the facts which emerge, quite what the inter-relationship between the Statute and the inherent jurisdiction is, and any application for permission to appeal against the manner in which the judge chooses to exercise his jurisdiction must, plainly, relate to and be based upon, the outcome of the substantive hearing. The judge was clearly alert to the argument about the manner in which the court's jurisdiction will fall to be exercised, and in my judgment, the attitude he displays demonstrates an appropriate caution.
- For these reasons I, like Thorpe LJ, would refuse permission to appeal on grounds 2 and 3.
- Mr. Luba's principal argument on ground 1, as I understood it, was very simple, and ran as follows. Under English law, he accepted that IC lacked the capacity to enter into a valid marriage. However, the status of the marriage he in fact entered into is, in English law, governed by Statute. Section 12(c) of the Matrimonial Causes Act 1973 (the 1973 Act) clearly renders the marriage into which IC in fact entered voidable, not void. It follows, he argued, that as a matter of English law it remains a valid marriage unless and until it is the subject of a decree of nullity pronounced in the English courts, and even then, it will not be held to be void ab initio; rather it will be held to be of no effect from the date of the decree absolute of nullity: see section 16 of the 1973 Act. In these circumstances, Mr. Luba submitted, there is simply no power in the English court to deny it recognition. Parliament has spoken, and the courts must implement the law as laid down by Parliament.
- This is, of course, a powerful argument, and one which would, in many cases, be irrefutable. I am, however, unable to accept it in this case. In my judgment, this marriage cannot be afforded recognition either on its own or in the context of the development of English private international law in relation to marriage. There are also powerful public policy grounds for refusing recognition.
- I acknowledge, of course, as I have to, that, as a matter of English domestic law, section 12(c) of the 1973 Act renders the marriage between IC and JK voidable rather than void. It does not, however, in my judgment follow that the English courts are bound to recognise the marriage as a valid marriage. To put the matter another way, the status conferred by sections 12 and 16 of the 1973 Act on the marriage is in no sense inconsistent with the High Court's capacity to refuse it recognition. There are, I think, a number of good reasons for so concluding. I propose to set them out under different headings.
The dual domicile rule
- In my judgment, this is a case to which the dual domicile rule applies. I take the rule itself from Dicey, Morris & Collins on The Conflict of Laws, 14th edition at paragraph 17R-054 (Volume 2, page 810):-
"Rule 67. As a general rule, capacity to marry is governed by the law of each party's ante-nuptial domicile.
Subject to Exceptions 1, 2 and 3 below, a marriage is valid as regards capacity when each of the parties has, according to the law of his or her ante-nuptial domicile, the capacity to marry the other.
Subject to Exceptions 1, 4, 5 and 6 below, a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her ante-nuptial domicile, the capacity to marry the other."
- None of the exceptions applies on the facts of the instant case. Exception 1 applies where there has been a change of gender; exception 2 relates to royal marriages; exceptions 3 and 4 relate to marriages celebrated in England; exception 5 relates to a marriage which has been dissolved by a decree of divorce or nullity; and exception 6 applies to marriages where the incapacity in question is "penal, discriminatory or otherwise contrary to public policy".
- In my judgment, the dual domicile rule is well established in English law, has been frequently applied, and produces no injustice in the instant case. IC does not have the capacity to marry under the law of his acknowledged ante-nuptial domicile, and under that law a marriage contracted by him is, in Thorpe LJ's word "inconceivable". Any marriage so contracted is, accordingly, not entitled to recognition.
- Counsel before us helpfully traced the history of the dual domicile rule through the jurisprudence, beginning with the decision of the House of Lords in Brook v Brook (1861) 9 H.L. Cas. 193 (Brook). I do not think it necessary to set out to undertake the same exercise, although it is helpful to recall what the facts of Brook were.
- In Brook an Englishman, domiciled in England, married the sister of his deceased wife, who was an English woman also domiciled in England. The marriage took place in Denmark, where such a marriage was valid. The House of Lords held, nonetheless, that the marriage was void in English law. I think it sufficient to cite only the first paragraph of the head note, which reads:-
"The forms of entering into the contract of marriage was regulated by the lex loci contractus, the essentials of the contract depend upon the lex domicilii. If the latter are contrary to the law of the domicile, the marriage, (though duly solemnised elsewhere) is there void."
- Brook, like a number of the subsequent cases, was decided before the distinction in English law was drawn between marriages which were void and voidable. In my judgment, however, this does not affect the force or applicability of the dual domicile rule.
- That rule received emphatic support in Sottomayor, orse De Barros v De Barros (Sottomayor) which, as the late Mr. Joseph Jackson QC points out in an illuminating commentary in his remarkable book The Formation and Annulment of Marriage (2nd edition, 1969 at pp 162-3), came before the court three times: - see (1877) 2 PD 81; (1877) 3 PD 1, CA; and (1879) 5 PD 94. In that case, first cousins, both domiciled in Portugal, went through a ceremony of marriage in England. Eight years later, they returned to Portugal. Under the law of that country, their marriage was illegal, as being incestuous. Their domicile, throughout, remained that of Portugal. This court, reversing the court below, held that the marriage was void because neither party had the capacity to contract it under the law of their ante-nuptial domicile.
- It is, I think, notable that in the Court of Appeal in Sottomayor, Cotton LJ in this court stated in terms that "no country was bound to recognise the laws of a foreign state when they work injustice to its own subjects" ((1897) 3 PD1 at 7), and in what the judge in the instant case in paragraph 76 of his judgment described as Sottomayor (number 2) (1879) 5 PD 94, Sir Gorrell Barnes P repeated the same sentiment, prefacing it with the words; "All persons are legally bound to take notice of the laws of the country where they are domiciled".
- I respectfully agree with the judge when he comments that:-
"Although this particular decision has been criticised in, for example, Dicey as being overly Anglo-Centric, the above statement of principle, reflecting a position on public policy, remains, in my judgment, persuasive, whilst of course requiring a rigorous analysis of the facts and law relevant to the individual case."
- Against this background it is, I think, sufficient for me to express my agreement with paragraph 35 of the judgment of the judgment of Munby J in X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor)  EWHC 168 (Fam);  2 FLR 968, which Roderic Wood J cites at paragraph 73 of his judgment:-
" The one thing which in my judgment is quite clear, and has been ever since the decisions of the House of Lords in Brook v Brook (1861) 9 HLC 193 and the Court of Appeal in Sottomayor v De Barros (1877) 3 PD 1, is that capacity to marry, in contrast with formal validity, is not governed by the lex loci celebrationis. So it is neither here nor there that a marriage celebrated in Pakistan might be recognised as valid in that country. The short point is that [B's] incapacity to marry in the eyes of English law means that no marriage entered into by him, either in this country or abroad, will be recognised in English law. And if it is not recognised in English law it will not be recognised by English public authorities."
- X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) has a number of similarities with the instant appeal. The subject of the proceedings, B was aged 25 and autistic. He was a Muslim living with, and being devotedly cared for by, his parents in the United Kingdom. B, the judge found, lacked the capacity to marry. His parents wanted, nonetheless, to take him to Pakistan in order to be married. Thus the principal difference between the facts of the case and the instant appeal is that B had not actually undergone a ceremony of marriage.
- Munby J held that he had a protective jurisdiction to prevent a vulnerable adult from being taken abroad to be married, although in the event he accepted undertakings from B's parents through counsel that they would not take B out of England and Wales and would not cause or permit him to undergo any civil or religious ceremony or marriage. The judge also made a declaration that any purported marriage by B whether celebrated inside or outside England and Wales would not be recognised in English law.
- In my judgment, X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) was correctly decided, and the jurisdiction identified by Munby J in paragraph 27 of his judgment, which I do not propose to set out, is aptly summarised and was correctly exercised.
Alternatives to the dual domicile rule
- I fully accept, as a matter of public policy, that, where it is appropriate to do so, the courts will seek to uphold the concept of marriage. It also seems from the authorities that in cases where the dual domicile role would result in non-recognition, and where non-recognition would contradict or conflict with the principle of upholding the concept of marriage, the courts have looked for alternative ways of recognising particular marriages. This has led, as I read the authorities, to the concept that a marriage will be recognised if the parties have capacity under the law of the country of their intended matrimonial home or under the law of the country with which the marriage has its most real and substantial connection: - see, for example, Lawrence v Lawrence  Fam 106, in which, at 115, Anthony Lincoln J said:-
"For my part, I consider it desirable that contracts of marriage entered into in circumstances such as occurred in the instant case (where the domiciles became English) should be upheld rather than destroyed. If the application of the criterion of real and substantial connection results in a marriage being held valid and the application of the dual domicile criterion results in an invalidation, in my view, the former should prevail."
- It is, however, to be noted that in Lawrence v Lawrence no question of mental or intellectual capacity was involved. The parties to the marriage in question were competent adults. The wife, who was a Brazilian national who had married another Brazilian national in Brazil. Divorce was not recognised in Brazil. The wife obtained a divorce in Nevada and shortly afterwards married an American who lived in England, and who had acquired a domicile of choice in England. The couple then established their matrimonial home in England. However, according to the law of her ante-nuptial domicile (Brazil), which did not recognise divorce, the wife was unable lawfully to contract the marriage.
- The marriage was recognised in England. It is, however, as it seems to me, a very long way from the facts of the instant case, and in my judgment when, at  Fam 106 at134, Sir David Cairns expressed agreement with Sir George Baker P in Perrini v Perrini  Fam 84,92 "that, if possible the court should uphold a marriage" he plainly had in mind a marriage between competent adults which, in every respect except for the fact of the ante-nuptial domicile of one of them, conformed to the conventional English model of marriage.
- The high point of this alternative approach is, I think, the speech of Lord Simon of Glaisdale in Vervaeke (formerly Messina) v Smith  AC 145 at 164-166. It is, in my judgment, worthwhile spending a moment recalling the facts of that case. Mrs. Vervaeke, who was Belgian, had married a Mr Smith in England in order to obtain a British passport, British Nationality, and the ability to continue to work as a prostitute in England. Mr and Mrs. Smith, as they became, parted immediately after the ceremony. In other words, it was a pure marriage of convenience, which was never consummated and Mr and Mrs Smith had no intention of living together as husband and wife. Nonetheless, it was a marriage into which both had the capacity to enter, and which was validly celebrated under the Marriage Acts.
- Sixteen years later, Mrs. Smith went through a ceremony of marriage with Mr. Messina in Italy. He died the same day. Mr. Messina was a rich man, with substantial property (albeit largely ill-gotten) in England. Mrs. Smith / Messina could only claim against his estate if her marriage to him was valid.
- Mrs. Vervaeke, as I shall henceforth call her, then sought, in England, a decree of nullity in relation to her marriage to Mr. Smith on the ground that she had not consented to it. This was granted, but the evidence on which she obtained it was false, and the decree was subsequently set aside by Ormrod J who upheld her marriage to Mr. Smith. Mrs. Vervaeke then applied to the Belgian courts and obtained a declaration that her marriage to Mr. Smith was void ab initio, because it was a mock marriage. Mrs. Vervaeke then followed this up by applying in England for a declaration that the Belgian decree of nullity was entitled to recognition alternatively for a declaration that marriage between herself and Mr. Messina was valid.
- In this latter endeavour, she failed, and her application was dismissed: The reasoning of the English courts was, in essence, that because Ormrod J had upheld her marriage to Mr. Smith, Mrs. Vervaeke was still married to him when she went through the ceremony with Mr. Messina. The Belgian decree was not thus entitled to recognition on both res judicata and public policy grounds.
- It was conceded on behalf of Mrs. Vervaeke ( AC 145 at 148) that if the appeal was decided against Mrs. Vervaeke on the basis of res judicata, that would dispose of the appeal. That, indeed, was the basis upon which Lord Diplock disposed of what he described as "this sordid case" ( AC 145 at 157-161). Ormrod J's decision to set aside the English decree of nullity left the marriage to Mr. Smith in being. That marriage remained a valid marriage, even though it was, in shorthand, a marriage of convenience and nothing else.
- On this basis it can be argued that what Lord Simon had to say on the subject of public policy was obiter dicta and thus not binding on this court. However, dicta from such a distinguished source are entitled to great respect. The question, of course, was whether or not the court should uphold the marriage to Mr. Smith or uphold the Belgian decree declaring the marriage to Mr. Smith a nullity.
- Early in the passage in the part of his speech dealing with the question of public policy, Lord Simon stated:-
"There is abundant authority that an English court will decline to recognize or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy; although the court will be even slower to invoke public policy in the field of conflict of laws than when a purely municipal legal issue is involved."
- Slightly later come the passages upon which reliance is placed in the instant case:-
"The only question is whether this [that is, the marriage to Mr. Smith] constituted a marriage, as to which English and Belgian public policy, as expressed in their respective laws, have returned different answers. If the crucial distinction is between forms and ceremonies on the one hand and essential validity on the other, this was a matter of essential validity. If, as seems to me to be intelligible, questions of capacity and perhaps reality of consent are to be hived off and separately considered, this was a question of quintessential validity; and I can see no reason why the personal law should be invoked, particularly as the personal law of the parties differed and, moreover, each imported a different connecting factor (domicile and nationality respectively). I venture to propose two other possible choices of the law to adjudge this sort of quintessential validity: first, the lex loci celebrationis; and, secondly and to my mind preferably, the law of the territory with which the marriage has the most real and substantial connection…
The second test is the application to choice of law of the criterion which your Lordships proposed in Indyka v. Indyka  1 A.C. 33 in considering recognition of the jurisdiction of a foreign divorce court. This criterion of a real and substantial connection seems to me to be useful and relevant in considering the choice of law for testing, if not all questions of essential validity, at least the question of the sort of quintessential validity in issue in this appeal - the question which law's public policy should determine the validity of the marriage. The territorial law with which a marriage has the most real and substantial connection will often be the law of the prospective matrimonial home: this was the law favoured to govern all questions of essential validity by Cheshire's Private International Law, and by Lord Greene M.R. (Somervell L.J. concurring) in De Reneville v. De Reneville  P. 100, 114. The test of the most real and substantial connection may obviate some of the objections to the test of the prospective matrimonial home - e.g., that the latter gives no guidance where no matrimonial home is clearly indicated or, as here, no cohabitation at all is proposed. Undoubtedly, in the instant case, England was the territory with which the marriage had the most real and substantial connection: the ceremony was in England, the "husband" was of English domicile and British nationality, the "wife" was to assume British nationality and take advantage of it, and she was to become permanently resident in England. There was indeed no other territorial law with which the marriage had any real or substantial connection.
If, as I think, our choice of law rule (whether Lord Brougham's or the extension of the Indyka principle) indicates English law as determinant of the validity of this marriage, it provides a potent reason for preferring the legally recognised English public policy and thus for refusing recognition to the Belgian judgment based on a contrary public policy.
(5) The appellant intended by the marriage to, and did as a result of the marriage, take advantage of English public law. I do not say that a party can by approbation convert a void or non-existent into a valid marriage, or that anyone can be "married by estoppel." Nor do I think that the appellant's career of criminal sexual prostitution or her perjury are relevant factors. But her having taken advantage of English public law in consequence of the marriage does seem to me a factor to be taken into account in determining whether to prefer English public policy as to the validity of the marriage, and thus refuse to accord binding force to the Belgian judgment."
- I have dealt at length with the case of Vervaeke (formerly Messina) v Smith because it seems to me important to be clear about the marriage with which the court was concerned in that case: - that is, the marriage to Mr. Smith. This was, in particular, a marriage between two competent adults, and had been validly celebrated under English law. In my judgment, this is many miles away from a marriage entered into by an English domiciled man who lacks capacity to enter into it, and which, if celebrated in England as an English marriage would be void. In my judgment, there are powerful public policy arguments against the recognition of such a marriage.
- Even if, however, one applies the tests identified by Lord Simon, the result, in my judgment, is the same. As I have, I think, already made clear, my view is that the dual domicile rule applies in the instant case, and that it produces no injustice. It is, I think, therefore strictly unnecessary for me to consider the alternative bases for recognition. However, if I am wrong about the application of the dual domicile rule, my judgment is that the ceremony of marriage at the heart of this appeal should not be afforded recognition on the basis of either of the tests identified by Lord Simon.
- In my judgment, the alternative tests posited have to be applied as at the date of the ceremony of marriage. In the instant case, the intention of IC's parents at that point was crystal clear. On 2 May 2007, when IC's parents' solicitors wrote to the local authority informing it of IC's marriage, they did so in the following terms: -
We are now instructed that [IC] was married in a Muslim ceremony which took place by telephone on or about 26 August 2006. [IC] did not travel to Bangladesh for the ceremony. We are instructed that [IC] is married within the Muslim religion.
[IC] married a woman [NK] who has remained living in Bangladesh. It is the intention of [KC and NC] that an application would be made to the Home Office for NK to travel to the United Kingdom to live with [IC] in the family home.
We appreciate that the application for a Declaration you have currently lodged at Court will need to be amended. Will you please notify us of your intention in this regard.
- In my judgment, nothing could be clearer. The country in which IC's parents, KC and NNC intended that IC and NK should make their matrimonial home was to be England. Their married life was to be spent in England. It is common ground that IC is both a British subject and domiciled in England and Wales. His domicile follows that of his father, who has lived in England for some 49 years and who, as at the date of the marriage, intended to spend the rest of his days in England. Indeed, it is only very recently, that he has expressed the intention to return to Bangladesh at some undefined point in the future.
- In my judgment, therefore, since it was plainly the intention of IC's parents that he and his wife should make their home permanently in England, this country is not only the designated country of the matrimonial home, but the country with which the marriage has the closest connection.
- In my judgment, as my citation from the authorities has, I hope made clear, departures from the dual domicile rule designed to uphold the principle of marriage may be appropriate when the marriage in question is one which, on grounds of public policy, the courts will think it right to uphold. To qualify for such treatment in English law, however, a marriage must in my judgment conform to English concepts of marriage. In my judgment, the absence of any capacity on the part of IC to enter into marriage is wholly inconsistent with English notions of marriage. The fact that the marriage would be recognised if the parties were living in Bangladesh seems to me, as Munby J put it in the passage from X City Council cited above, neither here nor there. IC and his parents are living in England: at the date of the marriage, the intention was that NK would join them in England. It is, accordingly, in my judgment, English notions of marriage which must inform the question of recognition both on the basis of the dual domicile rule, and on either of the alternative bases proposed by Lord Simon in Vervaeke v. Smith.
Section 12c of the 1973 Act
- I now return to the main point of Mr. Luba's argument. We were not taken to the Parliamentary debates during the course of which Parliament enacted firstly the Nullity of Marriage Act 1971 and, thereafter, sections 12 to 16 of the 1973 Act. Speaking for myself, however, I can envisage circumstances in which it might be appropriate to protect a respondent who, without the capacity to do so, had nonetheless entered into a marriage, from the effects of being vulnerable to a decree which rendered the marriage void ab initio. Whilst any such considerations must be, to an extent, speculative, a clue to why this is so may be contained in section 13(1) of the 1973 Act, which reads:-
"13 Bars to relief where marriage is voidable
(1) The court shall not, in proceedings instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court—
(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
(b) that it would be unjust to the respondent to grant the decree."
- I recognise, however, that section 12c and 16 are clear on their face, and plainly represent the will of Parliament. It is, therefore, necessary to examine their effect carefully.
- As I have already stated, the effect of sections 12c and 16 of the 1973 Act in English domestic law is, in my judgment, quite separate from the question whether or not the marriage in this case is entitled to recognition. This, I think, is clearly illustrated by the particular case on which the appellants place considerable reliance, namely In re Roberts, decd; Roberts v Roberts  1 WLR 653 ...Roberts).
- Roberts was an action for a grant of letters of administration in respect of the estate of the deceased, with whom the plaintiff had gone through a ceremony of marriage shortly before his death, at a time when it was alleged he was suffering from senile dementia and lacked the capacity to consent to the marriage. The effect of the marriage, if valid, was to revoke the deceased's previous will in favour of the defendants. Both Walton J and this court took the view that since the marriage, pursuant to section 12c and 16 of the 1973 Act was voidable rather than void, it subsisted at the date of the deceased's death, and as a consequence revoked the deceased's previous will under the Wills Act 1837.
- I do not doubt the correctness either of Walton J's decision or the decision of this court, which is plainly binding on us. The case does not, however, assist me in the context of this appeal. The marriage in question was celebrated in England between two English people, both of whom were domiciled in England. It had no "foreign", or private international law element. In such a domestic context, the question for the court was whether or not the marriage, which was subsisting at the date of the deceased's death was effective to revoke his previous will. Plainly, it was.
- In my judgment, Roberts is simply not relevant to the issues we have to decide. What it decides is that a voidable marriage which has not been the subject of a decree of nullity operates to revoke the wills made by the parties to it. In my judgment, that does not affect the question of whether the marriage in the instant case is entitled to recognition in English law.
The argument under the Human Rights Act 1998 (HRA 1998) and ECHR
- Mr. Luba argued that a refusal to recognise IC's marriage would breach his rights under Articles 8 and 12 of ECHR. I do not agree. IC's rights under ECHR Article 8 are, in any event, qualified by Article 8(2), and his right to marry under ECHR Article 12 exists "according to the national laws governing the exercise of this right". In the context of this case, the "national laws" must mean the laws of England, and in my judgment there is nothing to suggest that the relevant Marriage Acts and the English concept of capacity to marry offend either HRA 1998 or ECHR Article 12. In any event, the State's intervention in the life of IC seems to me, on the available evidence, well within ECHR Article 8(2) and it would also seem to me that any State of the European Union is entitled both to pass laws to regulate marriage, and to decide that those incapable of entering into it should not do so.
Cheni (orse Rodriguez) v Cheni  P 85 (Cheni)
- In this case, uncle and niece, who later became domiciled in England, married in Cairo in accordance with Jewish rites. Both intended to enter into a monogamous marriage. The marriage was valid by Jewish and Egyptian law, albeit that it was potentially polygamous. However, it became irrevocably monogamous on the birth of a child. Much later, the wife took proceedings in England to annul the marriage on the ground of consanguinity, and the question for the President, Sir Jocelyn Simon P (as he then was) was whether or not the court had jurisdiction to adjudicate on a marriage which, at its inception, was potentially polygamous. The President decided that he did.
- During the course of his judgment, Sir Jocelyn Simon said this:-
"But whatever test is adopted, the marriage in this case was in my judgment a valid one. I do not consider that a marriage which may be the subject of papal dispensation and will then be acknowledged as valid by all Roman Catholics, which without any such qualification is acceptable to all Lutherans, can reasonably be said to be contrary to the general consent of Christendom; and the passages I have quoted from Story himself and from those who have commented on him bear this out. If the general consent of civilised nations were to be the test, I do not think that the matter can be resolved by, so to speak, taking a card-vote of the United Nations and disregarding the views of the many civilised countries by whose laws these marriages are permissible. As Mr. Argyle observed, Egypt, where these people lived and where the marriage took place, is itself a civilised country. If domestic public policy were the test, it seems to me that the arguments on behalf of the husband, founded on such inferences as one can draw from the scope of the English criminal law, prevail. Moreover, they weigh with me when I come to apply what I believe to be the true test, namely, whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law. In deciding that question the court will seek to exercise common sense, good manners and a reasonable tolerance. In my view it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation. Nor do I think that I am bound to consider such marriages merely as a generality. On the contrary, I must have regard to this particular marriage, which, valid by the religious law of the parties' common faith and by the municipal law of their common domicile, has stood unquestioned for 35 years. I must bear in mind that I am asked to declare unmarried the parents of a child who is unquestionably legitimate in the eyes of the law:"
- In considering this passage it is, in my judgment, once again, important to keep clearly in mind the marriage with which the President was dealing. It was between two consenting adults, neither of whom lacked the mental capacity to enter into a marriage; both of whom had intended to contract a monogamous marriage; who had lived together as husband and wife, and had a child – a fact which, of itself, rendered the marriage monogamous. In these circumstances it is unsurprising that the President strove to uphold it. The only factor which tainted it was the fact that at its inception it had been potentially polygamous. It was otherwise in every respect what to an English lawyer would comprise a true marriage.
- In my judgment, quite different considerations apply to the marriage with which we are concerned. In particular, the absence of any capacity on IC's part, either to consent to the marriage itself or to sexual intercourse, in my judgment, strikes at its root. If, therefore, in the popular phrase, push comes to shove, I would, applying Sir Jocelyn Simon's words to the facts of the instant case hold that the marriage in the instant appeal is sufficiently offensive to the conscience of the English court that it should refuse to recognise it, and should refuse to give effect to the law of Bangladesh and Shariah law. In so doing, I take the view that the court would be exercising "common sense, good manners and a reasonable tolerance", and would properly be applying the law of England.
- I am therefore firmly of the view that IC's marriage to NK is not entitled to recognition in English law. I respectfully agree, however, with Thorpe LJ's observations on the inapplicability of Part III of the Family Law Act 1986. These proceedings were launched under the inherent jurisdiction of the High Court, not under Part III of the 1986 Act.
- As I have already stated, this case, in my judgment, is about recognition, and I therefore agree with Thorpe LJ's conclusion that in place of the existing declaration (h) there should be substituted a declaration that the marriage between IC and NK, valid according to the law of Bangladesh, is not recognised as a valid marriage in this jurisdiction.
- Save to this very limited extent, I would dismiss the appeal.
Lady Justice Hallett DBE:
- I have had the advantage of reading the judgments of Thorpe and Wall LJJ in draft. I entirely agree and have nothing to add.
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