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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> MM v NA (Declaration as to Marital Status) [2020] EWHC 93 (Fam) (22 January 2020) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2020/93.html Cite as: [2020] EWHC 93 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MM |
Applicant |
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- and – |
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NA |
Respondent |
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Mr Deepak Nagpal and Mr Admas Habteslasie (instructed by the Attorney General) as Advocate to the Court
(Mr Nagpal appeared alone at the hearing)
Hearing date: 16 October 2019
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Crown Copyright ©
Mrs Justice Roberts:
Introduction
(i) Are the parties validly married? If the answer to that question is no, the declaration cannot be granted. If the answer is yes, the court must then move onto the second question.
(ii) Is the marriage entitled to recognition in England and Wales? If the answer to that question is no, the declaration cannot be granted. If the answer is yes, the declaration can, and should, be granted.
The first question: are the parties validly married?
The expert evidence and evidence from the Foreign & Commonwealth Office
"5. Accordingly, whilst this is a question of judgement, I do not consider the recognition of certain private rights, such as the recognition of a Somaliland marriage, to imply greater political engagement with Somaliland than already takes place. Nor is it likely that the Foreign & Commonwealth Office would object to the recognition of a Somaliland marriage in a UK civil law case on the basis that the United Kingdom does not recognise Somaliland as a State."
"6. After the declaration of independence, Somaliland established a formal judiciary system consisting of district courts, regional courts, appeal courts and Supreme Court. In 2001, a constitution was approved by the public in a referendum. Article 130(5) of the Constitution allows the application of laws that predate the declaration of Somaliland as long as these laws do not infringe fundamental freedoms and human rights and Sharia Law. Since the approval of the constitution, many laws were enacted by the Somaliland Parliament. But many more, including the Somali Civil Code and the Somali Penal Code, are still applicable in Somaliland.
7. There are three systems that are used in Somaliland. These are the customary law, the formal law and the Sharia law. The customary law is a centuries-old system. In the emergence of a dispute, respected elders are assigned to hear the case. The decision of the elders becomes the law of the parties similar to the precedence in the common law system. If the same facts emerge between the same parties or members of the communities of the two parties involved in the earlier decisions, the latter judgment agrees with the previous verdict. It is such precedence [through which] the Somali customary law grows. Customary law is not written. It is oral and kept in the memory of the community members.
8. Sharia is the Islamic law and its sources are the Quran (the Muslim holy book), the Sunna (the narrations of prophet Mohamed), consensus and analogy among others. The order and importance of sources are a controversial matter in the different schools of thought in Sunni Islam. But the Quran and the Sunna are seen as primary sources. Sunna is narrations (Hadith) recounted from the Prophet by his companions. Hadith remained unwritten in the early stages of Islam. It also includes actions made by the Prophet as narrated by his companions."
The second question: Is the marriage entitled to recognition under the law of England & Wales?
"Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone."
"One qualification of the general principles may be the necessity for English courts to take cognisance of governmental acts of unrecognised states which directly affect family or property rights of individuals. There is no binding English authority supporting such a qualification of the general principles. Lord Wilberforce in Carl Zeiss Stiftung v Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853, 954, regarded it as a possible avenue for future development. See also Adams v Adams (Attorney-General intervening) [1971] P 188; In re James (An Insolvent) (Attorney-General intervening) [1977] Ch 41; and Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd [1978] QB 205, 218A-F. It is manifest, however, that such a development, if recognised, cannot assist the Ciskei in the present case. In the present case the court is not confronted with the necessity of doing justice to individuals who were caught up in a political situation which was not of their making."
The exception to the non-recognition principle: the doctrine of necessity or implied mandate
"My Lords, if the consequences of non-recognition of the East German "government" were to bring in question the validity of its legislative acts, I should wish seriously to consider whether the invalidity so brought about is total, or whether some mitigation of the severity of this result can be found. As Locke said: "A government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society", and this must be true of a society – such as we know to exist in East Germany. In the United States some glimmerings can be found of the idea that non-recognition cannot be pressed to its ultimate logical limit, and that where private rights, or acts of everyday occurrence, or perfunctory acts of administration are concerned (the scope of these exceptions has never been precisely defined) the courts may, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realities found to exist in the territory in question. These ideas began to take shape on the termination of the Civil War (see US v Insurance Companies 89 U.S. 99) and have been developed and reformulated, admittedly as no more than dicta, but dicta by judges of high authority, in later cases. …. No trace of any such doctrine is yet to be found in English law, but equally, in my opinion, there is nothing in those English decisions, in which recognition has been refused to particular acts of non-recognised governments, which would prevent its acceptance or which prescribes the absolute and total invalidity of all laws and acts flowing from unrecognised governments. In view of the conclusion I have reached on the effect to be attributed to non-recognition in this case, it is not necessary here to resort to this doctrine but, for my part, I should wish to regard it as an open question, in English law, in any future case whether and to what extent it can be invoked."
"That doctrine is said to be based on the need for the executive and the courts to speak with one voice. If the executive do not recognise the usurping government, nor should the courts: see Government of the Republic of Spain v SS Arantzazu Mendi (The Arantzazu Mendi) [1939] AC 256, 264, by Lord Atkin. But there are those who do not subscribe to that view. They say that there is no need for the executive and the judiciary to speak in unison. The executive is concerned with the external consequences of recognition, vis-à-vis other states. The courts are concerned with the internal consequences of it, vis-à-vis private individuals. So far as the courts are concerned, there are many who hold that the courts are entitled to look at the state of affairs actually existing in a territory, to see what is the law which is in fact effective and enforced in that territory, and to give such effect to it – in its impact on individuals – as justice and common sense require: provided always that there are no considerations of public policy against it. The most authoritative statement is that of Lord Wilberforce in Carl Zeiss Stiftung v Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853, 954, where he said:
"… where private rights, or acts of everyday occurrence, or perfunctory acts of administration are concerned … the courts may, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, give recognition to the actual facts or realities found to exist in the territory in question."
That view is supported by an article by Professor K. Lipstein in (1950) 35 Tr.Gro.Soc., 157 which he concludes by saying, at p. 188:
"The regulations of foreign authorities which have not been recognised may be applied as the law of the foreign country if they are in fact enforced in that country, notwithstanding that the authorities have not been recognised by Great Britain."
In the recent case about the illegal regime in Rhodesia I was myself ready to apply the principles stated by Lord Wilberforce. I said In re James (An Insolvent) (Attorney-General intervening) [1977] Ch 41, 62:
"When a lawful sovereign is ousted for the time being by a usurper, the lawful sovereign still remains under a duty to do all he can to preserve law and order within the territory: and, as he can no longer do it himself, he is held to give an implied mandate to his subjects to do what is necessary for the maintenance of law and order rather than expose them to all the disorders of anarchy …"
And Scarman LJ said that he agreed with much of this, adding at p. 70:
"I do think that in an appropriate case our courts will recognise the validity of judicial acts, even though they be the acts of a judge not lawfully appointed or derive their authority from an unlawful government."
The choice
If it were necessary to make a choice between these conflicting doctrines, I would unhesitatingly hold that the courts of this country can recognise the laws or acts of a body which is in effective control of a territory even though it has not been recognised by Her Majesty's Government de jure or de facto: at any rate, in regard to the laws which regulate the day to day affairs of the people, such as their marriages, their divorces, their leases, their occupations, and so forth: and furthermore that the courts can receive evidence of the state of affairs so as to see whether the body is in effective control or not."
"Lord Wilberforce [in the Carl Zeiss case] … reserved for further consideration whether the non-recognition of a government or, I think, a state, would necessarily lead to the English courts treating all its legislative activities as being a nullity or whether, in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail, it might not be possible to take cognizance of the actual facts or realities found to exist in the territory in question and he instanced private rights, or acts of everyday occurrence or perfunctory acts of administration. I see great force in this reservation, since it is one thing to treat a state or government as being "without law", but quite another to treat the inhabitants of its territory as "outlaws" who cannot effectively marry, beget legitimate children, purchase goods on credit or undertake countless day to day activities having legal consequences."
"The principle we extract from these authorities is that the courts may acknowledge the existence of an unrecognised foreign government in the context of the enforcement of laws relating to commercial obligations or matters of private law between individuals or matters of routine administration such as the registration of births, marriages or deaths. This principle is in line with that adopted by the Foreign Corporations Act 1991. However, the courts will not acknowledge the existence of an unrecognised state if to do so would involve them in acting inconsistently with the foreign policy or diplomatic stance of this country."
"Dogmatically the international problem is quite different from that so elegantly and liberally solved by the Supreme Court of the United States in a series of decisions which are one of the Court's finest contributions. As their reasoning makes clear, the basic fact was that the States continued in existence, though, through unrecognised governments, they denied their adherence to the Union. In the international situation now under discussion there does not exist a State and the international community in general and Britain in particular does not wish the existing organism to exercise any internationally effective action; this is the very essence of non-recognition. If one allows to the unrecognised State an undefined but strictly limited right of internationally effective legal activity, this runs counter to the policy of non-recognition, which, after all, merely means that marriages and divorces, for example, which take place during the period of non-recognition will have retroactive international effectiveness only after recognition. Moreover regard must be had to the attitude which the lawful, still recognised sovereign is likely to take. Will he not legitimately take offence at the limited recognition which the application of the doctrine of necessity implies, when it is allowed to prevail during a period of non-recognition (as opposed to the period after the elimination of the problem, as in the United States)? In answering this question English courts should not forget that they cannot very well require the lawful sovereign of a foreign country to accept concessions which the English sovereign himself is not prepared to make within his own realm. This is not a field in which there is room for a double standard. To remain consistent English courts should, in regard to unrecognised States, reject the doctrine of necessity both for their own constitutional law as well as internationally. Hardship suffered by an individual is unlikely to occur very often and will only be temporary."
"[62] Despite Dr Mann's argument to the contrary, there is, I am satisfied, an exception. Its correct description whether as a doctrine of necessity or an implied mandate is not important. Its formulation I do not need to express in terms as broad as that I have cited from the Special Commissioners' case, though I do not dissent from their judgment. It does, however, extend to the recognition here of decrees of divorce granted in accordance with the law of a territory or country not recognised by the UK Government.
[63] It is recognised in the decisions to which I have referred both here and in the US. It is accepted to be part of present international law by the ECHR.
[64] To ignore it would be to leave the courts of this country out of step with a well-recognised jurisprudence. There are no good reasons for this and compelling arguments to the contrary.
[65] But the validity given to such decisions of a court of an unrecognised State must, however, be limited in scope. It must never be inconsistent with the foreign policy or diplomatic stance of the UK Government."
The Namibia exception
"125. In general, the non-recognition of South Africa's administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory."
"96. It is to be noted that the International Court's Advisory Opinion, read in conjunction with the pleadings and the explanations given by some of the court's members, shows clearly that, in situations similar to those arising in the present case, the obligation to disregard acts of de facto entities is far from absolute. Life goes on in the territory concerned for its inhabitants. That life must be made tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the inhabitants, the acts of these authorities related thereto cannot be simply ignored by third States or international institutions, especially courts, including this one. To hold otherwise would amount to stripping the inhabitants of the territory of all their rights whenever they are discussed in an international context, which would amount to depriving them even of the minimum standard of rights to which they are entitled.
"All of these statements, including Lord Wilberforce's, are admittedly obiter, but they constitute dicta of the most carefully considered kind, and I find them wholly persuasive."
"We have spoken of him who possesses, or has possessed, the right of governing. It remains to speak of the usurper of power, not after he has acquired a right through long possession or contract, but while the basis of possession remains unlawful. Now while such a usurper is in possession, the acts of government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws and suppression of the courts."
"The answer to the question of law
Turning now to answer the question of law which I posed at the beginning of this judgment, I would answer it thus. In certain circumstances our courts will give effect to the orders of non-recognized courts. By the expression "non-recognized courts" I mean to cover courts sitting in foreign states the governments of which our sovereign does not recognize as well as courts sitting in territory under the de jure sovereignty of our sovereign but presently under the de facto albeit unlawful control of a usurper government. Our courts will give effect to the orders of non-recognized courts where:
(i) The rights covered by those orders are private rights;
(ii) Giving effect to such orders accords with the interests of justice, the dictates of common sense and the needs of law and order; and
(iii) Giving them effect would not be inimical to the sovereign's interests or otherwise contrary to public policy.
That is the principle; and none of it involves recognizing any unrecognized entity. It goes purely and simply to protecting private rights."
"Viewing the case from a different perspective, the issue is essentially between the Taiwan creditors on the one hand and Mr Ting, Madam Chen and Mr Chan on the other. It is not an issue with which national politics have any natural connection. They should not be allowed to obtrude into or overshadow a question of the private rights and day-to-day affairs of ordinary people. The ordinary principles of private international law should be applied without importing extraneous high-level public controversy."
"90. ….This court is obliged to refuse to give effect to the validity of acts carried out in a territory which is unrecognised unless the acts in question can properly be regarded as regulating the day to day affairs of the people within the territory in question and can properly be regarded as essentially private in character….. I cannot categorise the acts of the TRNC which are relevant to international aviation as acts which regulate the day to day affairs of the people who live within the area controlled by the Government of the TRNC; the acts are essentially public in nature."
"The last question involves the doctrine of "necessity" and requires more detailed consideration. The argument is that, when a usurper is in control of a territory, loyal subjects of the lawful Sovereign who reside in that territory should recognise, obey and give effects to the commands of the usurper in so far as that is necessary in order to preserve law and order and the fabric of civilised society. Under pressure of necessity the lawful Sovereign and his forces may be justified in taking action which infringes the ordinary rights of his subjects but that is a different matter. Here in question is whether or how far Her Majesty's subjects and in particular Her Majesty's judges in Southern Rhodesia are entitled to recognise or give effect to laws or executive acts or decisions made by the unlawful regime at present in control of Southern Rhodesia.
There is no English authority directly relevant but much attention was paid to a series of decisions of the Supreme Court of the United States as to the position in the states which attempted to secede during the American Civil War. Those authorities must be used with caution by reason of the very different constitutional position in the United States. It was held that during the rebellion the seceding states continued to exist as states, but that, by reason of their having adhered to the Confederacy, members of their executives and legislatures had ceased to have any legislative authority. But they had continued to make laws and carry out executive functions and the inhabitants of those states could not avoid carrying on their ordinary activities on the footing that these laws and executive acts were valid. So after the end of the war a wide variety of questions arose as to the legal effect of transactions arising out of that state of affairs."
"Lord Pearce, at p. 737, referred the doctrine to:
' … the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful …. For this reason it is clearly desirable to keep the courts out of the main area of dispute, so that, whatever be the political battle, and whatever be the sanctions or other pressures employed to end the rebellion, the courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order.'"
"The basis of the judgment of Lord Denning MR, as I understand it, is that justice requires a reconciliation at least to the extent that the courts in England will recognise the judicial acts of the courts in Rhodesia so that the normal tasks of maintaining law and order in the colony – tasks which in law must certainly continue to be the responsibility of the British Crown – may be effectively accomplished. He invokes the doctrine of recognition of the de facto, and the doctrine of implied mandate or necessity. I agree with much of the thinking that lies behind his judgment. I do think that in an appropriate case our courts will recognise the validity of judicial acts, even though they be the acts of a judge not lawfully appointed or derive their authority from an unlawful government. But it is a fallacy to conclude that, because in certain circumstances our courts would recognise as valid the judicial acts of an unlawful court or a de facto judge, therefore the court thus recognised is a British court. In my judgment these doctrines do not solve the question raised by this appeal." (page 70F to H)
"[56] The President, Sir Jocelyn Simon, referred to the doctrine of necessity and implied mandate. He did not rule it out but held that it did not apply in relation to a judge who was appointed de facto rather than de jure when Parliament had laid down how he was to be appointed. It created a constitutional anomaly for his acts to be recognised while the executive acts of those appointing him were refused recognition by the executive here.
[57] I am satisfied that the same considerations do not arise here. There is no question of the court and the executive acting contrary to one another when the Attorney-General supports the decision at which I have arrived."
Human Rights considerations
Order accordingly
Note 1 These concerns were not an obstacle to the grant to NA of a resident’s visa in May 2015 when she joined MM in this country the following month. The Home Office was prepared to issue an EEA Family Permit Visa on the basis that she was MM’s partner as opposed to his spouse. [Back] Note 2 I have not burdened the text of my judgment with the reasoning of the House of Lords. In essence, as Lord Reid explained at 905D to 906D, the GDR had been set up by the USSR and derived its authority from that government. Since the British Government had certified that the USSR remained de jure sovereign and had not voluntarily transferred its sovereignty to the GDR, the GDR did not become a sovereign state at its inception. At all times it remained an organisation subordinate to the USSR. Because it was impossible for any de jure sovereign governing authority to disclaim responsibility for acts done by subordinate bodies which it has set up and which have not attempted to usurp its sovereignty, the courts in England could not treat as nullities acts done by or on behalf of the GDR. [Back] Note 3 The House of Lords subsequently reversed the decision of the Court of Appeal in part on the basis that the claim could properly proceed in relation to the contents of the hotels: [1979] AC 508. [Back]