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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Boughajdim v Hayoukane [2022] EWHC 2673 (Fam) (21 October 2022) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2022/2673.html Cite as: [2022] EWHC 2673 (Fam), [2023] 2 FLR 217, [2023] 2 FCR 1 |
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version
of the judgment to be published.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Laila Boughajdim | Petitioner |
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- and - |
||
Akka (Alan) Slimane Hayoukane | Respondent |
____________________
Mr Philip Perrins (instructed by David du Pré & Co) for the Respondent
Hearing dates: 25 to 29 July 2022
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Mr Justice MacDonald:
INTRODUCTION
Boughajdim,
represented by Mr Charles Hale KC and Mr Frankie Shama of counsel. She has dual Moroccan and British citizenship, having gained the latter in August 2020. The wife has the benefit of a legal aid certificate. The Respondent (who, for the sake of convenience, I shall refer to as the husband) is Akka Alan Slimane
Hayoukane,
represented by Mr Philip Perrins of counsel. The husband holds joint Moroccan and British citizenship. The wife and husband are second cousins.
validity
of the marriage falls to be determined by reference to the local form under Moroccan law and that this court is dealing with a
valid
foreign marriage, acknowledged as such by a foreign court and affirmed following proceedings for perjury and on appeal.
validity
of the marriage falls to be determined by reference to the domestic Marriage Acts. In this context, he submits that the Moroccan marriage cannot be recognised as
valid
in this jurisdiction either as to form or as to capacity, the husband submitting in respect of the latter that the law governing questions of capacity is, in any event, the law of the husband's domicile, under which law the husband did not
validly
consent to the marriage. Finally, the husband argues, in any event, that in the context of the special character of marriage there are cogent reasons for refusing to recognise the Moroccan marriage on the ground of public policy.
BACKGROUND
various
points, sought to give a partial or misleading picture to the court in an effort to gain advantage. The husband's oral evidence was
vague
and he was prone to dissembling. He sought to deflect almost every question put to him, rarely gave straight answers and was apt to assume a false air of innocent confusion or to blame his lawyers when faced with difficult questions from leading counsel or from the court. The wife likewise regularly sought to obfuscate the position with her answers and also resorted consistently to blaming her lawyers for inconsistencies and omissions in her evidence as they were highlighted by Mr Perrins in a skilful cross-examination. The oral evidence of both parties failed to assist the court in the performance of its task. Within this context, I have been required to treat the evidence of each party with some caution.
Commencement of Relationship
vast
majority of her time in this jurisdiction since that date. It is likewise not disputed that she is domiciled in England and is habitually resident in this jurisdiction.
v
Lamrani [2012] 2 FLR 1099:
"Moroccan marriages and divorces are not referred to as 'Islamic' ones, they are not a religious ceremony but legal acts involving the Family Law where legal procedures are to be followed in both marriage and divorce."
visit
to Morocco in 2000. I have borne in mind that Mr Ouras was not called by the wife and that his statement is unsigned. However, this aspect of his evidence is consistent with the husband's evidence that Mr Ouras was present at relevant times. In his second statement, the husband confirms that Mr Said Ouras was present when the husband and the wife spent time together in Morocco.
Hayoukane,
asserts that he never discussed an engagement with the wife or her parents or paid a dowry. The husband's father is now deceased. However, in his second statement the husband concedes that in 2000 there was an occasion when his mother was invited to the wife's parents' property and that he went into the property on that occasion also. In her oral evidence the husband's mother confirmed that she was invited for dinner at the wife's parents' house but stated that marriage had not been discussed and there were only strangers present (I note that in her first statement the wife states that the husband's mother was "not happy about her son wanting to marry me or any other women…"). The husband's statement describes the
visit
thus:
"One day when Mohammed, Said and Aziz and I arrived back from somewhere my father asked us to go and fetch my mother back from [the wife's] parents' house where they were holding some sort of women's gathering. [The wife] and her female relatives werevery
welcoming and tried to feed us, but we had already eaten, and as my mother was there on that occasion, they persuaded us to stay for tea. During/after tea they wanted to take photos, so we posed with them before leaving."
version
of events. The wife's own account in this regard has evolved somewhat over time. In her first statement in 2017 she asserts that "we became engaged and had an engagement party in Morocco which was attended by [the husband] and his parents" and "the next day we went and bought the engagement rings". However, in her second statement the wife states that the engagement rings were purchased at the end of March 2000 and the engagement followed some months later in August 2000.
visit
to England by the wife which her parents wished her to undertake. However, I pause to note at this stage that following the events described above the wife thereafter arrived in England on a fiancé
visa
granted by the United Kingdom immigration authorities, to which I will come in more detail next.
Move to England and Cohabitation
visa
by the Home Office on 7 March 2001. The husband assisted in the organisation of a fiancée
visa
for the wife to enable her to enter the United Kingdom. In his written evidence he states that this was because the wife had been refused a tourist
visa.
Before Lord Meston the husband stated that he might have "signed" the fiancée
visa
and before this court he stated he had "signed" the fiancée
visa.
For her part, the wife says it was a fiancé
visa
that was initially refused by the Home Office due to lack of evidence and that such a
visa
was subsequently granted following the provision of further information and the intercession of the husband's sister. In her oral evidence, the husband's mother claimed that the wife could have come to London on a tourist
visa
but did not dispute that she in fact arrived on a fiancée
visa.
visa
and needed a place to live. The wife asserts that the parties lived as husband and wife at the husband's parents' property.
visit
the Registry Office in Croydon but were unable to take matters forward as the wife's
visa
had expired so they instead attended the Home Office in Croydon. It is unclear why a further appointment at the Registry Office was not made. Following these events, the wife contends that she would suggest to the husband that they travel to Morocco to finalise the marriage but that the husband assured her he would deal with matters and that, thereafter, when she raised the issue the husband assured her that the marriage subsisted and that he was waiting for papers to arrive and latterly claiming that they were at his mother's property in Morocco. The parties were both in the United Kingdom on the date stated in the Moroccan marriage certificate as the date of the parties' marriage, namely 13 July 2001. There is no dispute that on that date there was no marriage ceremony in either England or Morocco.
Hayoukane,
were born in August 2002 and November 2006 respectively. The husband contends that the wife became pregnant to trap him into marriage and that he again made it clear he would not marry her. He likewise asserts that the second pregnancy was a trick. The husband contends that whilst his surname appears on the birth certificates, it came from the hospital records, on which the wife had used his surname and to which he did not raise objection. On the "Informant" section of both children's birth certificates it is the husband's name that is recorded as certifying that the particulars entered on the birth certificates, including the name of the mother as 'Laila
HAYOUKANE',
are true. The wife's surname also appears as
Hayoukane
on a utility bill from 2007-2008 and the wife also produces a statement which she contends demonstrates that she was permitted to make transactions on the husband's American Express card in the name of
Hayoukane.
However, whilst in her statement of 24 August 2017 the wife asserts that the husband opened a bank account for her in the name of 'Mrs
Hayoukane'
the wife has produced no documentary evidence of this although she claimed to have provided such evidence to her lawyers.
Separation
"… you lived together as husband and wife which has even more significance in light of you both practising the Muslim faith. Our client instructs that you had always maintained from the beginning of your relationship that your intention was to marry her and on that basis she acted in good faith that the steps that she took in the course of your relationship was one that a wife would take within the course of a marriage."
Proceedings in Morocco for Marriage Recognition
"Article 16
A marriage contract is the accepted proof of legal marriage.
If for reasons of force majeure the marriage contract was not officially registered in due time, the court may take into consideration all legal evidence and expertise.
During its enquiry the court shall take into consideration the existence of children or a pregnancy from the conjugal relationship and whether the petition was brought during the couple's lifetimes.
Petitions for recognition of marriage are admissible within an interim period not to exceed fifteen years from the date this law goes into effect."
"Article 16 of the Moroccan Family Code concerns couples who, for reasons of force majeure could not register their marriage in due time, or persons who have lost their marriage contract and could not find a copy of it or those who were married without the presence of notaries, only with friends and family as witnesses. The law allows them to apply to the family court for the recognition of their marriage, but they must explain in detail and provide evidence of their failure to register the marriage i.e. why they did not appear before two notaries to do so. This is an exception from the rule which is, as stated in Article 16 that a marriage contract is the only accepted legal proof of marriage nowadays in Morocco. This possibility of applying to the family court for the recognition of marriage was set for a transitional period commencing on Feb 5th 2004 and ending on Feb 5th 2019. At present the only legal way to prove marriage is a marriage contract drafted by two traditional notaries in Morocco or at Moroccan Embassies or Consulates in foreign countries."
valid
marriage can take place in Morocco without a formal ceremony of marriage, a ceremony being a tradition and not a legal requirement for a
valid
marriage in that jurisdiction. He states as follows in his expert report as to the effect of Art 16 of the Moroccan Family Code in that context:
"Avalid
marriage can take effect without a formal ceremony of marriage. The ceremony is a tradition in Morocco, not a legal requirement for the
validity
of marriage. If a couple satisfied the legal marriage conditions and appear before two notaries to declare their marriage (offer and acceptance and dowry) then the marriage is legal and
valid.
Also when a court issues a judgment under Article 16 of the Family Code the judgment is considered as a marriage document for the parties and no ceremony is necessary. The ceremony is optional and no need to appear before the notaries."
validate
a marriage under Article 16 is fifteen days from day following the notification of the decision or 45 days for a person not domiciled or resident in Morocco. He stated that a marriage
validated
under Art 16 gives the Moroccan court jurisdiction to consider a divorce petition in respect of the marriage under Article 2 of the Family Code.
i) The wife was the wife of the husband since December 2000 as her marriage was with a specified dowry and in the presence of a guardian.
ii) Compelling circumstances prevented the marriage from being documented.
iii) After "the wedding party" husband completed all administrative documents for the wife to join him in the United Kingdom where he lives.
iv) The marriage produced two children.
v)
The husband refused to register the marriage contract based on the fact that the children are registered in his name in the United Kingdom where the children reside.
validly
served in this case if he had been served at a property in Morocco at which he did not live.
view
regarding the requirements of service for the 2013 proceedings, contending that the opinion of Mr Kabbaj was not "fully correct". In her oral evidence, Ms Tajount stated that the wife's petition did not deny the husband was in England but that she had been entitled to have the Moroccan petition served at an address in Morocco under the Moroccan code, which permits service at a person's origin. This reflected the contents of her statement on this issue:
"[2] I was instructed by [the wife] to make her marriage to [the husband]valid.
I prepared the application and filed this at the court on 25th December 2012. According to the code of Law in Morocco under Article 130 I was allowed to use the Family Home address and [the husband] last place of habitual residence. I used the following address [address given]. I was aware that [the husband] was living in the UK. I did not use his UK address as there was a long process for service. The application would first have to be approved by the court then sent to the department of foreign affairs and then sent to the Moroccan Embassy in the UK. After this the Moroccan Embassy would have to contact [the husband] and ask for him to collect the application from their office. This process can take up to a year. I believed it would be most appropriate to serve the application at the last known address the family home.
[3] If the Respondent was not a Moroccan national Article 130 would not apply and the court would have directed me to file through the embassy. The court was satisfied that this address could be used. I received notification from the court that the application was served to the Respondent's family home. The application was served to the Respondent's family home by a court appointed officer.
[4] If the court appointed officer was not satisfied with the service of the application, I would have been asked to provide an alternative address. If the individual refused to acknowledge the application, the court would have been invited the individual to court to explain the refusal. I would like to make the court aware in the Moroccan Legal Justice system the court is responsible for the service of the application. If service was not possible or if I had given the wrong address by mistake, the court would report back to me and I would have to give a correct or alternative address."
"…was notified with a summons to the hearing dated 18 January 2013 according to Statement of delivery enclosed with the aforementioned case, dated 07 January 2013, which states that the individual concerned was notified on 09 January 2013 through [LN], husband of the daughter of the paternal aunt of the defendant's mother, who refused to acknowledge receipt, sign and submit ID Card, declaring that the defendant was abroad."
visiting
the property and would say hello. Again, I have borne in mind that Mr Ouras was not called by the wife and that his statement is unsigned. However, this evidence is consistent with the evidence adduced on behalf of the husband that the land at that address, and the property on it, is owned by the family and that LN is a tenant at the property. A letter dated 7 October 2015 to the husband from Mr Jaouad Dekaki, the lawyer instructed by the husband in the perjury proceedings in Morocco, referred to the person refusing to accept service of the judgment of the Moroccan court dated 4 April 2013 as "your relative".
i) The husband facilitated the immigration of the wife to England in order for her to work there.
ii) The wife never asked for marriage nor was married.
iii) The husband and wife did not have children together.
iv) The photographs offered by the wife in support of the petition are not probative as the wife
visited
the property of the husband's mother "with her two boys".
v)
It is categorically the case that the husband was never married to the wife, even under an Islamic marriage.
"[7] The court and I were satisfied that Mr Thami was instructed by MrHayoukane.
I received a notification by the Moroccan court that the notice of hearing was received and acknowledged and received by Mr Thami's secretary. If Mr
Hayoukane
was not their client, then the secretary would not stamp the notice acknowledging the receipt. If the court officer mistakenly sent the notice to the wrong law firm, then the staff can inform accordingly. The notice will be sent back and delivered by the court officer to the correct address.
[8] I do not believe Mr Thami would make false representation about representing the Respondent. I have known Mr Thami to be a respectful experienced lawyer. If Mr Thami was fraudulently representing the Respondent, he would lose his licence to practise and his career."
"[5] Throughout the perjury proceedings there was no mention of Mr Thami or his professional conduct. At no point in the proceedings the Respondent did not raise he didn't receive the marriage application nor that he did not know who Mr Thami is. The Respondent did not accuse Laila of appointing Mr Thami to falsely represent him at these proceedings . In my professional opinion it would be impossible for Laila to do this and it would be impossible for Mr Thami to represent the Respondent without instructions. The Respondent's Mother was further present at the hearing to give evidence; she did not mention Mr Thami at all throughout the proceedings."
"And regarding the appointment of the defence for [the husband] during the preliminary stage, there was not any power of attorney from him, which explains why the defence did not attend any hearings, and was content with what was "one modest memorandum" according to the ruling preamble, despite the sensitivity of the case and the failure to defend the case, there werevery
important legal implications which left [the husband] without a right because until now he still does not know who appointed the defence for him."
In its judgment the Court of Appeal in Meknes makes no reference to this ground of appeal in its reasons, but when reciting the facts of the matter, states that the husband "through his lawyer, served a plea…" and that the husband "petitioned for the claim to be dismissed."
"Byvirtue
of the primary claim statement presented by the plaintiff registered on 27/12/2012, judiciary fees paid, in which she declares that she is the wife of the defendant since December 2000. That the dowry of their marriage was fixed in the presence of her delegate, that because of force majure they could not document an act of marriage, and that after the weeding and the marriage declaration, the defendant prepared all the administrative documents to make it possible for her to join him in England where he lives, they have two children: Walid and Rayan, the defendant refused to document an act of marriage pretending that the children are registered under his name in England where they live. She requested a judgment after listening to her witnesses to confirm their marriage. Her delegate presented a list of witnesses with their addresses, and she confirmed she had been living with him supported by the invoice of water services, in addition to a Bank certificate that shows that they have a common bank account, and the birth act of her children that the father used to declare in the civil state office, and joined her request with the above mentioned documents translated into Arabic.
Based on the inclusion of the file for the examination setting on 18/01/2013, the plaintiff and her delegate were present and his delegate were absent, she confirmed what stated in the claim adding that the defendant lived together as husband and wife from 13/07/2001 and that she had two children with him: Walid born on 13/08/2002 and Rayan born on 02/11/2006 and that she is not pregnant, and that the defendant is one of her mother's relatives, given that his mother is a cousin of his (sic) mother, and that their engagement was with the consent and the presence of the parents and families, and that his immigration to England made it impossible to contract marriage at due time, and because he asked her to prepare the necessary documents to join him there, and that she made another celebration (called Lamlak), with the presence of their families, and he had no other women except her, and that she had never been married before, and the plaintiff's delegate delivered twenty three photos, showing that the defence refused to contract the marriage act to prevent her from sharing his properties with her according to English law. The plaintiff added that the conjugal life stopped a year and a half ago, and that she does not know where he is, and she is the only one who is financially supporting the children, and she paid the charges of birth celebration in Meknes city in the defendant's family house, and that the dowry was fixed at 10,000DH received from his parents at the day of the engagement.
Based on the reply of the defendant's delegate in the setting on 08/02/2013 in which he confirmed that the defendant couldn't come due to his work conditions abroad, explaining that he had facilitated to the plaintiff the immigration procedures to England to work there, and in fact she worked and used to go frequently to his mother's house, and that he neither asked for her hand no married her, and that she had never given birth to children with him, and that the photos presented no proof, requesting the annulment of the claim.
And in the second examination setting on 18/03/2013 the witnesses were listened to [the court listed the witnesses names] who declared after giving a legal oath that the two parties in dispute were living as husband and wife for many years and that they had two children mentioned above, and that they are still married, and that their declaration was based on the fact that they attended the engagement, and birth ceremony, and on the family relation."
"Since the request aims at confirming the marriage relationship between the two parties in dispute, And according to the provisions of article 16 of the family code, the court has the right exceptionally to hear to the marriage case, in case there is force majeure to document an act of marriage in due time, depending on different ways of evidence, taking into account the children given birth by them, or pregnancy resulting from their marriage.
And since the plaintiff attended the examination setting, and declared that she was married to the defendant starting from 13/07/2001, with the above mentioned dowry, and that she had two children with him, and that they celebrated their engagement in the presence of their families, and then the birth celebration of the children, and that they could not document an act of marriage because some conditions beyond their reach related to residence abroad.
And since after listening to the witnesses, at the examination setting each of them separately, gave a legal oath, and agreed that the two parties in disputes were married to one other, for many years and that they had two children.
And since according to the file documents, and all what took place in the examination setting, it became certain to the court that the two parties in conflict were married to one another for many years since 13 July 2001 and that their conjugal relationship satisfies all the legal conditions required for an act of marriage including the aptitude, the acceptance, the consent, the dowry, and the exemptions of its hindrances, except for its documentation, and that the defendant's denial byvirtue
of the administrative reply of his lawyer is groundless and is disproved by the proclamations of the witnesses at the examination setting, which were in conformity with the plaintiff's claim, and the administrative documents abroad, including the bank statement, water service invoice, and the photos, delivered that asserted spontaneously and with no confusion, the existence of the conjugal relationship between the two parties in dispute, under the same roof, and in normal conditions, as is the case for all married couples, which gave birth to the above-mentioned children, which makes the plaintiff's claim well constructed, and requires positive response for it."
English Divorce Proceedings
"…there are proceedings continuing in Morocco in respect of the alleged marriage and which will affect itsvalidity
or subsistence."
Perjury Proceedings in Morocco
Hearings before Lord Meston
valid
marriage between the parties. Lord Meston further concluded that he could identify no reason for refusing to recognise the Moroccan marriage on the basis of procedural irregularity or unfairness, breach of natural justice or public policy. Within this context, Lord Meston held as follows:
"[95] There was nothing amounting to, or resembling, a marriage ceremony on an ascertainable date or at an ascertainable place. There was no contemporaneous marriage certificate or registration of marriage. Although a date of marriage (13th July 2001) was pleaded in the petition it was not possible to identify any particular significant event, whether a ceremony or otherwise, which had occurred on that date. It appears to have been the date which The Petitioner stated to the court in Morocco as the date from which she and MrHayoukane
started to live together. Accordingly, there would be no sustainable basis for establishing a
valid
marriage if it was said to have occurred in England and to be governed by the Marriage Acts.
[96] However, there was sufficient evidence to satisfy the competent Moroccan court to apply Article 16 of the Moroccan Family Code. That court determined that the parties were married, accepting evidence of the parties' engagement and intention to marry, evidence of their inability to register the marriage, evidence of their subsequently lengthy cohabitation and children, evidence that MrHayoukane
had held the Petitioner out to be his wife and also some evidence that she used his name and that others regarded them as married."
And
"[100] I find that [the husband] did have sufficient notice of the proceedings borough in Morocco and that he had an opportunity to respond to, and participate in, those proceedings, an opportunity which he took (albeit to a limited extent) by instructing a lawyer to represent him. I reject the criticisms of the process in Morocco and of the judgment of the court in that jurisdiction. I do not consider that there was any significant procedural irregularity or any unfairness in the proceedings in Morocco, or any breach of natural justice towards [the husband]. There are no other public policy reasons for not recognising that judgment."
"26. It now seems to me that the Attorney General should be asked to consider arguments which the Respondent MrHayoukane
wishes the Attorney General to consider, and the other areas of dispute, so that the court can consider:
i. Whether and to what extent the decision of the Moroccan court should be regarded as determinative of the parties' status.
ii. What is the proper law to be applied in this case, and if it is the lex loci celebrationis, what in this case is to be treated as the 'loci celebrationis.'
iii. Whether there are public policy or other or other considerations which preclude reliance on the Moroccan court's decision.
iv. Whether the presumption of marriage should be considered (and if so, whether further evidence might be required from the parties).
v.
Whether separate consideration should be given to estoppel by res judicata.
vi.
Whether having regard to the arguments and findings in the most recent case of NA
v
MSK there may now also be further arguments available to the Petitioner based on Article 12 ECHR. These may require further consideration and (possibly) also further determination on the facts. In particular whether, as in NA
v
MSK, it could be said that the parties had intended to embark on a process of marriage, and if so, why that marriage did not happen.
27. Having decided to accept that the case should now be referred to the Attorney General, I consider that it is probably premature, and now perhaps unnecessary, to attempt to amplify my earlier Judgment, particularly if there is likely to be further hearing and further consideration of the issues. In the circumstances I will simply again extend time for appeal (although that too may be unnecessary if the proceedings before me are not yet regarded as concluded).
28. To avoid doubt, it will direct that the Petitioner's solicitors should refer the relevant case papers to the Attorney General but that the papers be sent to the Attorney General should first be agreed with the Respondent's solicitors. Further directions may be given on application to the court by letter, and any further hearing may be requested in the same way."
Appeal Proceedings in Morocco
"On Merit
Where the appeal is based on the reasons referred above.
And since a marriage contact is the way to prove a marriage, if for compelling reasons a marriage contract was prevented from being notarised at the time, the court can hear a marital lawsuit and rely on all other means of proof, as well as the experience in the application of Article 16 of the Family Code.
And since the Court of First Instance, in order to clarity the truth, had ordered an examination on the matter, through which it listened to a group of witnesses upon taking the legal oath, and they confirmed their knowledge of the establishment of marriage between the two parties.
And that the marriage resulted in the birth of the two aforementioned sons.
And that the husband not living in Morocco and his claim that he has another wife and that host country is strict with regard to polygamy is considered a compelling circumstance which made it impossible to document the marriage at the time.
And since, for the aforementioned considerations, the marriage claimed by the appellant has gathered its elements and conditions required by law, with the exception of testifying before two notaries, which the court has the right to rule in accordance with the aforementioned Article 16, which what the appealed judgment must uphold."
Continuing Proceedings in England
v
Khan [2020] EWCA Civ 122 in the Court of Appeal and of Re C in the Privy Council before responding to the invitation. Between 24 June and 24 April 2020 the wife's solicitors chased the Attorney General for a response on four separate occasions. On 24 April 2020 the Attorney General informed those instructed by the wife that he was awaiting the outcome of the application in Akhter
v
Khan for permission to appeal to the Supreme Court. Nothing further was heard for over a year. The wife's new solicitors applied on 7 July 2021 to return the matter to court and a hearing was listed on 6 October 2021 with an invitation to the Attorney General to attend that hearing. However, on 13 August 2021 and nearly three years since the Attorney General had been invited to intervene, the Office of the Attorney General responded as follows:
"The Attorney General's office is grateful to the Judge and parties for giving the opportunity of intervening in this matter. However, after carefully considering the papers this is not a matter in which the Attorney General does wish to intervene. The Attorney General will therefore not be represented at the hearing on the 6th October 2021."
"The court determined that the matter would be listed for a further hearing to finally determine the issues in this case, save that the findings of fact made by HHJ Meston QC in his judgment dated 11 February 2018 (read alongside his supplementary judgment of dated 5 September 2018) shall stand, save that the court at the further hearing of the case will attach such weight to these findings as it considers appropriate. The court shall hear further submissions from the parties and subject to further consideration at the PTR listed below, receive such further evidence as it considers necessary in order to make a final determination."
"The court determined that as the starting point the findings of HHJ Meston QC in his judgment dated 11 February 2018 (read alongside his supplementary judgment dated 5 September 2018) shall stand, save that the court at the further hearing of the case will attach such weight to these findings as it considers appropriate, and that neither party would submit a further witness statement or give oral evidence at the further hearing. The court will read the transcript of the evidence heard by HHJ Meston QC, and hear submissions from the parties, before determining whether the court would have made different findings. In the event that the court determines that it requires further oral evidence from one or both parties upon having heard the parties' submissions, this shall be considered at the next hearing. This approach was deemed both fair and proportionate to both parties."
"The court determined that it was necessary for there to be a re-hearing of the matter, and that it was necessary for both parties to give further evidence and provide any further witness statement(s) and any additional evidence which they intend to rely on".
THE LAW
Format of Re-hearing
i) When the court is reconsidering findings made previously in a concluded judgment, that exercise comprises a re-hearing de novo. At this stage the issues are determined afresh on the basis of the whole of the evidence.
ii) The court approaches the task of fact-finding in the conventional way and reaches its own conclusions looking at all the evidence afresh. It does not give presumptive weight to the earlier findings, as that would risk depriving the exercise of its fundamental purpose of doing justice and achieving the right outcome.
iii) The burden of proof remains throughout on a party seeking findings of fact to prove them to the civil standard in the normal way. The court assesses the evidence on its merits, without privileging earlier evidence over later evidence, oral evidence over written evidence, or contentious evidence over uncontentious evidence.
iv) A rehearing is quite distinct from an appeal, in which findings stand unless they are shown to be wrong.
v
Rayner & Keeler Ltd (No2) [1967] 1 AC 853, which states that an issue estoppel will arise where (a) the foreign court is a court of competent jurisdiction in relation to the party to be estopped, the judgment of the court is final and conclusive and on the merits, (b) the parties to the English litigation are the same as the parties to the foreign litigation and (c) the issue or issues raised are identical (and necessary for the decision rather than collateral).
v
Thompson [1957] P 19. In that case the Court of Appeal held that though, prima facie, the doctrine of estoppel per rem judicatam will be recognised and will apply in matrimonial proceedings, the court is not to be bound by any such doctrine as might abrogate its statutory duty to inquire into the facts alleged and any counter charge made in matrimonial proceedings.
Validity
of Marriage
v
Sharbatly [2012] EWCA Civ 1507 at 34, affirming the reasoning of Holman J in Asma Dukali
v
Mohamed Lamrani (Her Majesty's Attorney General intervening) [2012] EWHC 1748 (Fam), that fundamental to the right to sue for financial relief following divorce is the existence of a marriage recognised as
valid
or
void
by the lex loci celebrationis. By parity of reasoning, ordinarily fundamental to the right to proceed with a petition for divorce is the existence of a marriage recognised as
valid
by the lex loci celebrationis.
validity
of the marriage when determining whether the Moroccan marriage is capable of supporting a divorce petition in this jurisdiction. In the context of that dispute, English law distinguishes between the form of the marriage (formal
validity),
which is governed by the lex loci celebrationis, and the question of capacity to marry (essential
validity),
which is governed by the law of the relevant party's domicile.
(i) Formal
Validity
validity
of a marriage:
"A marriage is formallyvalid
when (and only when) any one of the following conditions as to the form of celebration is complied with (that is to say):
(1) if the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country where the marriage was celebrated;
[…]"
v
Dastous [1930] AC 79, Apt
v
Apt [1948] P 83 and Hamza
v
Minister for Justice Equality and Law Reform [2010] IEHC 427, Dicey formulates the following general propositions from [17-004] to [17-013] with respect to the aforesaid rule:
i) A marriage celebrated in the mode, or according to the rites or ceremonies, required by the law of the country where the marriage takes place (the lex loci celebrationis) is, as far as formal requisites go,
valid.
ii) The domestic courts give effect to the principle that the form of a contract is governed by the law of the place where the contract is made, and that, whilst under certain circumstances other forms may be sufficient, the local form always suffices.
iii) Within this context, and in general, the lex loci celebrationis must alone decide all questions relating to the
validity
of the ceremony by which the marriage is alleged to have been constituted.
iv) Where the marriage is said to have been celebrated in accordance with the lex loci celebrationis, compliance with the local form is essential.
v)
If the local law recognises marriage by cohabitation and repute, a marriage so constituted will be recognised in England.
vi)
If the local law recognises marriages by proxy (being a marriage in which at least one of the parties is absent from the country, or at least the place, where the marriage is celebrated) such a union will be treated as
valid
in England, even if one of the parties is domiciled and resident in England, and the power of attorney authorising the proxy to act is executed in England.
vii)
The form required need not necessarily be form required by the lex loci in ordinary cases. All that is essential, in order to bring the marriage within the principle that a marriage will be formally
valid
if celebrated in accordance with the form required or recognised as sufficient by the lex loci celebrationis, is that it should be contracted in a form which, according to the law of the country where the marriage takes place, is sufficient under the circumstances to constitute a
valid
marriage.
validity.
valid,
the marriage must be celebrated in accordance with the form required or recognised as sufficient by the lex loci celebrationis, it is well established that the local form can include the operation of laws, including foreign laws, that form marriages retrospectively even where no
valid
ceremony of marriage has taken place. The authors of Dicey observe as follows at [17-010]:
"So well established is the principle that compliance with local form is sufficient, that it applies even though the marriage, originally invalid by the local law, has been subsequentlyvalidated
by retrospective legislation in the locus contractus. This principle applies to English statutes
validating
marriages celebrated in England, and to foreign legislation
validating
marriages celebrated in a foreign country, even though at the time when the legislation takes effect both parties have acquired domicile in England."
valid
for having been celebrated in accordance with the form required or recognised as sufficient by the law of the country where the marriage was celebrated (the local form), will be where the marriage was celebrated or created and the law that applied in that location at the relevant time, i.e. the lex loci celebrationis. In this case, the parties offer diametrically opposed submissions as to which is the lex loci celebrationis in this case.
validity,
in respect to marriages outside England and Wales Dicey states at [17-040] that, in order to prove the formal
validity
of a marriage in the case of a marriage celebrated outside England, in addition to be being sufficient for the court be satisfied that the ceremony would constitute a
valid
marriage according to the law of the country where it was celebrated, the court must be satisfied that the certificate of marriage would be received by the courts of that country as evidence of the marriage. Under the FPR 2010 r.22.16, the authenticity of the certificate relied on by one party and duly disclosed is deemed to be admitted by the other party unless notice to prove the document is given.
(ii) Essential
Validity
validity
of the marriage, as I have noted English law distinguishes between the form of the marriage (formal
validity),
which is governed by the lex loci celebrationis and the questions of capacity to marry to marry (essential
validity).
It is well settled that the question of the capacity to marry is determined by the law of the party's domicile (Qureshi
v
Qureshi [1972] Fam 173).
valid
if by the law of either party's domicile he or she does not consent to marry the other.
(iii) Public Policy and Recognition of Foreign Marriage
v
C and Others [2009] Fam 11 sub nom City of Westminster
v
IC (By His Friend The Official Solicitor) and KC and NN [2008] 2 FLR 267 Thorpe LJ recognised that it is open to the court not to recognise a foreign contract of marriage even when it would be
valid
under the applicable foreign law:
"[31] I would be equally supportive of the judge's introduction of the public policy considerations. Not every marriagevalid
according to the law of some friendly foreign state is entitled to recognition in this jurisdiction. In Cheni
v
Cheni [1965] 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 common sense, good manners, and a reasonable tolerance.'"
v
MI [2021] COPLR 207, the observations of Sir Jocelyn Simon P in Cheni
v
Cheni derive from the wider principle expressed in Dicey at [5R-001] that:
"English courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law."
DISCUSSION
valid
marriage having regard to the principle of locus regit actum. Further, I am satisfied that the husband has not demonstrated to the satisfaction of the court in this case that grounds exist for refusing to recognise the Moroccan marriage on the basis of public policy. In the circumstances, I am satisfied that the wife's petition can proceed. My reasons for so deciding are as follows.
The Overall Approach of the Court
very
particular circumstances of this case, where the judge originally tasked with determining this case is no longer available, and where circumstances have changed significantly following the last involvement of that judge, it is clear that Keehan J considered that the interests of justice could only be met in this case by undertaking a full re-hearing. In addition in this case, the original findings of fact made by Lord Meston were, in fact,
very
limited in their scope, covering in the broadest terms only his
views
on the credibility of the parties, the question of the service of the Moroccan proceedings and to the issue regarding the instruction of Mr Thami. In the circumstances, I have approached the fact finding exercise in this matter afresh and in line with the principles set out in Re CTD (A Child: Rehearing).
v
Thompson the wife's allegation against the husband of cruelty, made in maintenance proceedings under the Matrimonial Causes Act 1950, was rejected and her summons dismissed. Upon the husband presenting a petition for divorce alleging cruelty by the wife he further alleged the wife had falsely and maliciously alleged cruelty in the maintenance proceedings. The wife in turn denied cruelty to the husband and petitioned for judicial separation on the ground of the husband's cruelty. Holding that no part of the wife's application should be struck out on the ground of estoppel per rem judicatam, Lord Denning observed as follows at p.28:
"There is no doubt, to my mind, that if the doctrine of res judicata applies in its full force to the Divorce Division of the High Court, the wife is so estopped. The issue of cruelty has already been the subject of litigation by a court of competent jurisdiction, to wit, the court which tried the wife's claim for maintenance, and the court would not, according to the ordinary principles, permit her to open the same subject of litigation again: see Hoysteadv.
Commissioner of Taxation. The question in this case is, however, whether those ordinary principles do apply to the Divorce Division. The answer is, I think, that they do apply, but subject to the important qualification that it is the statutory duty of the divorce court to inquire into the truth of a petition - and of any countercharge - which is properly before it, and no doctrine of estoppel by res judicata can abrogate that duty of the court. The situation has been neatly summarized by saying that in the divorce court "estoppels bind the parties but do not bind the court": but this is perhaps a little too abbreviated. The full proposition is that, once an issue of a matrimonial offence has been litigated between the parties and decided by a competent court, neither party can claim as of right to reopen the issue and litigate it all over again if the other party objects (that is what is meant by saying that estoppels bind the parties): but the divorce court has the right, and indeed the duty in a proper case, to reopen the issue, or to allow either party to reopen it, despite the objection of the other party (that is what is meant by saying that estoppels do not bind the court). Whether the divorce court should reopen the issue depends on the circumstances. If the court is satisfied that there has already been a full and proper inquiry in the previous litigation, it will often hold that it is not necessary to hold another inquiry all over again: but if the court is not so satisfied, it has a right and a duty to inquire into it afresh. If the court does decide to reopen the matter, then there is no longer any estoppel on either party. Each can go into the matter afresh."
Verkaeke
v
Smith (Messina and Attorney General Intervening [1981] 2 WLR 901, the Court of Appeal suggested, obiter, that the principle in Thompson
v
Thompson only holds good where the reliance on issue estoppel will interfere with the inquisitorial function of the court, absent which the ordinary rule of estoppel will apply. Subject to that however, it is difficult to see why the principle articulated by Lord Denning in Thompson
v
Thompson should not apply equally in respect of matters of fact determined in earlier foreign proceedings, in so far as they are relevant to divorce proceedings before the English court.
v
Rayner & Keeler Ltd (No2) Lord Reid emphasised that special care is required before a foreign judgment is held to give rise to an issue estoppel in circumstances where the English court, unfamiliar with modes of procedure in the foreign court, may find it difficult to determine whether a particular issue has been decided or not or that the determination was necessary for the decision. In the same case, Lord Upjohn observed:
"All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind."
Lex Loci Celebrationis
validity
of a marriage, the starting point is to identify the lex loci celebrationis. I am satisfied that the lex loci celebrationis in this case is the Kingdom of Morocco for the following reasons.
valid
marriage and, in circumstances where the marriage was created by operation of Moroccan law, submits it is axiomatic that the lex loci celebrationis in this case is Morocco. Against this, the husband submits that in determining the lex loci celebrationis the court must, and indeed can only, look at the location and conduct of the parties as at the date of the marriage stated on the marriage certificate that followed the conclusion of the proceedings in Morocco, namely 13 July 2001. On that date both the parties accept that they were in England and that no event capable of giving rise to a marriage took place in either England or Morocco. The husband submits accordingly that the lex loci celebrationis was England and Wales and no marriage took place having regard to the requirements of the Marriage Acts.
v
Att-Gen [1954] AC 155 it is clear from the judgments of their Lordships that the House of Lords considered that the lex loci celebrationis will remain the prior question even in cases concerning marriages it is said were effected by operation of law under retrospective foreign legislation. In this respect, I note the following passages from the judgment of Lord Reid (emphasis added):
"It has long been settled that the formalvalidity
of a marriage must be determined by the law of the place where the marriage was celebrated. But if there has been retrospective legislation there, then a further question arises: are we to take the law of that place as it was when the marriage was celebrated, or are we to inquire what the law of that place now is with regard to the formal
validity
of that marriage?"
And:
"Once it is settled that the formalvalidity
of a marriage is to be determined by reference to the law of the place of celebration, there is no compelling reason why the reference should not be to that law as it is when the question arises for decision. I therefore agree that this appeal should be dismissed."
And:
"It would seem to be in accord with comity and with principle that our courts should recognize thevalidity
of similar foreign laws dealing with an aspect of marriage,
viz.,
formality, which has always been recognized as governed by the lex loci celebrationis."
valid
for having been celebrated in accordance with the local form required or recognised as sufficient by the law of the country where the marriage was celebrated. However, in circumstances where no party in this case seeks to assert that a marriage ceremony or similar celebration took place, this gives rise to a further question. Namely, whether it is possible still to identify a lex loci celebrationis in a case where there has been no marriage ceremony or other similar celebration capable of giving rise to a marriage.
validity
of that proposition depends on what is meant by "celebration". In circumstances where in a number of jurisdictions a marriage ceremony is not a legal requirement for a
valid
marriage including in Morocco, to treat the concept of celebration as being confined only to a marriage ceremony or other similar celebration would risk cutting across the principle of locus regit actum. In Berthiaume
v
Dastous the Privy Council held as follows with respect to the question of the recognition of a marriage as
valid
by reference to the lex loci celebrationis:
"If there is one question better settled than any other in international law, it is that as regards marriage – putting aside the question of capacity – locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicile of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although part of the ceremony or proceeding if conducted in the place of the parties domicile would be considered a good marriage. These propositions are too well fixed to need much quotation."
v
Dastous the Privy Council spoke of a "proceeding or ceremony". In Starkowski, the House of Lords spoke of "a ceremony or formalities which according to the laws of that country constitute a
valid
marriage" and Dicey speaks of marriage "in the mode, or according to the rites or ceremonies" of a particular location. Moroccan law as set out in the expert report of Mr Kabbaj provides a good example. Mr Kabbaj confirms that there is no legal requirement for a ceremony for a marriage in Morocco to be
valid.
But having regard to the authorities above, in respect of a marriage concluded in accordance with each and every legal requirement of that jurisdiction, it would not be said that the lex loci celebrationis was not Morocco because there had been no marriage ceremony or similar celebration. In these circumstances, I consider that the concept of the lex loci celebrationis concerns the law of the place where the marriage was celebrated or otherwise
validly
given effect. As Lord Asquith observed in Starkowski:
"I can see no material distinction in this regard between the observance, as between the parties, of formalities which suffice to make a marriagevalid
ab initio according to the local law, and of formalities which are not so sufficient but the insufficiency of which is (almost immediately in this case) repaired by a
validating
Act of country A's legislature."
visa
from the United Kingdom immigration authorities to travel to England following this period in Morocco. Both parties accept that the wife secured a fiancée
visa
from the UK authorities, which would have required proof, inter alia, of a plan to marry. The husband concedes that he assisted the wife in securing a fiancée
visa.
I am satisfied that he took this action because it reflected the position as the parties then understood it to be following the period they spent together in Morocco in 2000, namely that they were to be married. In light of the husband's evidence that he assisted the wife to secure the fiancée
visa,
going as far as to tell Lord Meston that he may have "signed" the
visa
and this court that he had "signed" the
visa,
the only other explanation for this course would be that the husband knowingly participated in an immigration fraud on the UK immigration authorities. There is no evidence to suggest the husband acted fraudulently and no party pursues such an allegation. In the circumstances, I am satisfied that the fiancée
visa
is strong evidence of the formal position between the parties following their time together in Morocco in 2000.
visa
granted by the United Kingdom to the wife constitutes strong evidence of the outcome of the parties' time in Morocco in 2000. In addition, certain of the other concessions made by the husband and his mother, as detailed above, tend to support the wife's case, again particularly when
viewed
in light of the subsequent fiancée
visa
that was secured from the UK authorities for the wife.
visa
with the participation of the husband, on balance I am satisfied that the court can accept the wife's evidence that a party was held at her parents' property to celebrate the engagement, at which the husband and his mother attended, and that her dowry was agreed and paid. I consider it more likely than not that the competing account of the husband, that the payment from his parents and the wife's travel to London was in pursuit of tourism is a construct designed to obscure the true position as evidenced by the fact of the fiancée
visa.
That evidence, and the husband's concession that he assisted in securing the wife a fiancée
visa
for entry into the United Kingdom, also makes it more likely than not in my judgment that following their engagement the husband did tell the wife that when he returned to Morocco they would formalise a marriage and that, once the wife was in England pursuant to the fiancée
visa,
he repeated those assurances on occasion.
visa
in that context. This is particularly the case where all parties accept that a central requirement for formalising a marriage contract was not completed, namely the drafting of such contract by the two notaries.
visa
in 2001. On the evidence before the court, I am satisfied that the husband and wife did live in England as husband and wife whilst they were together. The birth certificates of the children provide the strongest evidence in this regard. It is plain on the face of the birth certificates that the information provided to the Registrar was certified as true by the husband. On the "Informant" section of both children's birth certificates it is the father's name that is recorded as certifying as true the particulars entered on the birth certificates, including giving the name of the wife with his surname both in 2002, a year after her arrival in England, and four years later in 2006. Even if the source of the surname used on the birth certificates was the hospital records on which the wife used the husband's surname, the husband accepts that he raised no objection to use by the wife of his surname.
valid
marriage as between the husband and the wife in 2013 also occurred in Morocco, the Moroccan courts determining that there was a
valid
marriage under Moroccan legislation, albeit that the husband contends that the local form in that regard was not properly complied with. Thereafter, the marriage constituted under Art 16 of the Moroccan Family Code was properly registered in the Kingdom of Morocco on 27 June 2013. The marriage certificate issued on 1 November 2017 was a Moroccan marriage certificate issued by the Moroccan Embassy. Whilst I accept that certain of the factors relied on by the Moroccan court in satisfying itself that Art 16 was made out occurred in England, in particular the extended period in which the parties lived as and husband and wife and the birth of children, in the circumstances I am satisfied that looking at the picture overall on the facts as I have found them to be, the lex loci celebrationis in this case is properly identified as being the Kingdom of Morocco.
Compliance with Local Form
valid
marriage under the Moroccan law. Within this context, Mr Kabbaj also makes clear that during the period the court is dealing with in this case, the local form included Art 16 of the Moroccan Family Law Code, the retrospective effect of which I have described above. As recounted out above, Dicey concludes that so well established is the principle that compliance with local form is sufficient, that it applies even though the marriage in question, originally invalid by the local law, has been subsequently
validated
by retrospective legislation.
validated
by retrospective legislation in the lex loci celebrationis can satisfy the principle that compliance with local form is sufficient, is based on the decision of the House of Lords in Starkowski. In that case, the husband and wife were both domiciled in Poland when they married in a Roman Catholic religious ceremony in Austria in 1945, without a civil ceremony. At time of the marriage ceremony German law, in force as a result of the Nazi occupation of Austria, did not recognise marriages without a civil ceremony. Some weeks later however, following the liberation of Austria, the Austrians passed a law retrospectively
validating
such marriages provided they were duly registered. Following a delay of four years, the marriage was registered, by which time the husband and wife were domiciled in England and not resident or present in Austria. The marriage was also registered without the knowledge of the wife, who thereafter went through a further ceremony of marriage with another man in England. The question for the English court was whether the Austrian marriage was
valid,
as a precursor to determining whether or not the English marriage was bigamous and, therefore, whether or not the child of that marriage was legitimated. Within this context, Lord Reid held as follows at 169 to 172:
"The question to be determined is whether the law of England can give effect to the retrospective Austrian legislation, and the present case appears to me to be indistinguishable from a simple case where two English people domiciled here go through a ceremony of marriage in another country which is invalid in form and return to this country, and then retrospective legislation is enacted in that country whichvalidates
the marriage in that country as from the date of its celebration.
If the respondent is right, then it is possible for foreign legislation to alter the status of English people who were neither domiciled, resident nor present in the foreign country when the legislation was passed nor at any time thereafter. It is certainly unusual that foreign legislation should have that effect whether it purports to be retrospective or not, but I do not think that it can be laid down as a universal rule that it can never have that effect and therefore it is necessary to consider more closely the circumstances of cases like the present case.
It has long been settled that the formalvalidity
of a marriage must be determined by the law of the place where the marriage was celebrated. But if there has been retrospective legislation there, then a further question arises: are we to take the law of that place as it was when the marriage was celebrated, or are we to inquire what the law of that place now is with regard to the formal
validity
of that marriage? This question does not appear to have arisen for decision in England. There are many cases in which there have been statements of high authority of the general principle and of its application in
various
circumstances, but I do not think it helpful to analyse these statements of the law. I can find nothing to indicate that the present question was even in contemplation in any of these cases, and at best one could only make a speculative inference from words used as to what their author might have thought if he had had to consider the present question. Some other authorities were cited, but they do not appear to me to carry one
very
far. To my mind the best way of approaching this question is to consider the consequences of a decision in either sense. The circumstances are such that no decision can avoid creating some possible hard cases, but if a decision in one sense will on the whole lead to much more just and reasonable results, that appears to me to be a strong argument in its favour.
Cases calling for retrospective legislation have frequently occurred in England. The common case is that some fact has been discovered which shows that marriages celebrated in particular circumstances were invalid: sometimes many marriages extending over a long period were involved, but no one had suspected that these marriages were other thanvalid.
It was then thought proper to pass legislation which had the effect of
validating
these marriages ab initio. If that had not been done there would have been great confusion and in many cases great injustice. It can be assumed that some of the marriages involved were between persons domiciled in other countries, and similar cases may well have occurred abroad.
Persons domiciled in England may have been married in another country by ceremonies apparentlyvalid
but later discovered to be invalid, and retrospective legislation may then have been passed in that country. If people have lived and acted and brought up families in the reasonable belief that they were married, it is highly desirable that the law should recognize some practical way of neutralizing a belated and fortuitous discovery that their marriage was formally invalid. But if retrospective legislation in the country where the marriage was celebrated is to be of no avail to persons domiciled outside that country, it will seldom be possible for the country of their domicile to afford any remedy. If
validating
legislation is passed soon after the cause of the invalidity has been discovered, it is not easy to see how any practical difficulties or hardships can result from it.
But serious difficulties could arise if there were a long interval between the discovery of the invalidity and the remedial legislation. If the spouses are still living together when the invalidity is discovered, they can avoid most of the difficulties by remarrying. But if they have separated they would be in the position of knowing that they are for the moment unmarried but are liable at any time to become married against their wishes by retrospective legislation. It was argued that we should only recognize foreign retrospective legislation if the spouses in some way consented to its operation, but that argument is based on a misapprehension of what such retrospective legislation sets out to do. It has no concern with the state of affairs at the time when it is enacted: its purpose is tovalidate
the original ceremony, and if there was then the necessary consent to marry, that is all that matters. Then it was argued that no
valid
consent was given in this case at the ceremony in 1945 because the wife Henryka knew that the ceremony was insufficient to constitute a legal marriage; but it is not proved that the husband Urbanski also knew that, and the wife cannot be heard to say that her consent freely given in church was not a consent to marry. I need not consider what the position would be if both parties knew at the time that the ceremony was insufficient in law.
It was suggested in argument that the law of England might recognize foreign retrospective legislation subject to certain qualifications or exceptions. For example, it was said that if one of the parties had entered into another marriage before the retrospective legislation took effect, then a different rule should apply; and it was suggested that if an English court of competent jurisdiction had decided that either party was unmarried, then subsequent retrospective foreign legislation should not affect that decision. It would not be proper to attempt to decide such questions in advance, but I shall assume for the purpose of the present argument that such exceptions would not be made and that a person who knew that his marriage abroad was invalid for want of form might be left in complete uncertainty if the circumstances were such as to make it at all reasonable to suppose thatvalidating
legislation might be passed. If that is so, there is at first sight compelling force in the appellant's argument that a person ought at any time to be able to find out with certainty whether he or she is married or not, and that the law of England ought not to recognize a principle which may result in a person being for the moment unmarried in law but knowing that he is liable to become married retrospectively. If there were any substantial likelihood of this happening I would be inclined to agree, but one must look at realities. I find it difficult to suppose that in any country there would be substantial delay in deciding whether to legislate retrospectively once the reason for the invalidity had come to light, and I cannot think that anyone who had discovered that his marriage was formally invalid would for long be in any real doubt whether there was to be remedial legislation. In the present case remedial legislation was promptly enacted, and this could have been discovered and, indeed, may have been known to the parties: it was only by a mischance that the necessary executive action in Austria was delayed for four years.
Accordingly, in my opinion the balance of justice and convenience is clearly in favour of recognizing thevalidity
of such retrospective legislation (subject, it may be, to some exceptions), and the objections to doing so are not substantial and are not founded on any compelling principle. Once it is settled that the formal
validity
of a marriage is to be determined by reference to the law of the place of celebration, there is no compelling reason why the reference should not be to that law as it is when the question arises for decision. I therefore agree that this appeal should be dismissed."
"The problem is whether a foreignvalidating
Act with retroactive effect dealing with the form of marriage but with consequential effect on the status of persons domiciled outside the legislating country should be treated as a law concerning the formality of marriage or as a law affecting status.
…/
My Lords, I feel little doubt that it is the former that should prevail and be regarded as an exception to the latter, or rather, perhaps, that the latter should be interpreted as referring to laws directly affecting status as distinct from those which deal with form and only have indirect or consequential effect on status. What influences me most in reaching this conclusion is that there is no field of legislation which has been so fruitful of retrospectivevalidating
legislation in this country as that of marriages invalid for lack of some requisite formality. Your Lordships were referred to more than fifty of such statutes between 1780 and 1939. Seventeen of these Acts deal exclusively with marriages outside the United Kingdom in territories or portions of territory regarded for certain purposes as notionally British soil and generally apply only where one or both of the parties is a British subject, but the remainder deal with marriages in the United Kingdom and in no single instance is the
validity
made to depend upon the domicile of the parties at the date of marriage or at the date of the Act. The legislature of this country has clearly assumed competence to pass legislation
validating
informal marriages contracted here irrespective of domicile or nationality. It would seem to be in accord with comity and with principle that our courts should recognize the
validity
of similar foreign laws dealing with an aspect of marriage,
viz.,
formality, which has always been recognized as governed by the lex loci celebrationis.
There are other reasons for accepting thisview,
the most cogent of which are, I think, as follows: (1) Since a marriage, even if
valid
by the law of domicile, is regarded as invalid if not in conformity with the law of the place of celebration, it would seem illogical if this same law cannot retrospectively cure the invalidity. (2) The legislature of the place of celebration is more likely to be cognizant of the informality and accordingly more likely to afford the necessary statutory relief."
"This House has strongly affirmed the principle "locus regit actum": Berthiaumev.
Dastous. Where two persons, neither of them domiciled in country A, enter into a ceremony or formalities which according to the laws of that country constitute a
valid
marriage, the law of England will recognize that marriage as
valid.
I can see no material distinction in this regard between the observance, as between the parties, of formalities which suffice to make a marriage
valid
ab initio according to the local law, and of formalities which are not so sufficient but the insufficiency of which is (almost immediately in this case) repaired by a
validating
Act of country A's legislature."
validated
in the foreign country that marriage will be recognized as
valid
in Canada, even if by then both the parties were domiciled in Canada.
"I relied on not having been in to Morocco since 2000; not having had anything to do with the address [property in Morocco]; the resident LN not knowing me; and, me not having appointed Mr Thami to act for me during the proceedings".
volunteer
to the husband the reason she was travelling to Morocco between December 2012 and March 2013. I am however, satisfied that the husband ultimately became aware of the proceedings and instructed a lawyer in Morocco to answer the case pleaded by the wife, such that the Court of First Instance in Meknes was cognisant of his case in rebuttal when it made it decision in April 2013. My reasons for reaching that conclusion are as follows.
view
by the position taken by the Court of Appeal in Meknes in 2019 with respect to the issue of service in the 2013 proceedings. The assertion regarding lack of proper service was repeated as a ground of appeal in the husband's Moroccan appeal in January 2019. Whilst that assertion appears to have failed as a substantive ground of appeal, the Moroccan Court of Appeal accepted in 2019 that, service of the judgment of the Court of First Instance in Meknes in 2013 have been again attempted to the same family member at the property in Meknes owned by the husband's family, the husband had not had notice of the judgment of the Moroccan court in 2013 and that this meant the appeal was properly submitted "within the legal time".
via
his family being alerted by LN, engaged Mr Thami in respect of those proceedings, most likely
via
his mother, and participated in those proceedings through the instruction of Mr Thami. The bundle contains a request by Mr Thami dated 15 January 2013 to register his Power of Attorney on behalf of the husband because that is what happened. I reject the submission that Mr Thami was engaged by the wife to make it look like the husband was represented as a fabrication on the part of the husband.
v
Hughes [1899] 1 Ch 781, a husband obtained a decree for divorce in Florida in an undefended action by the husband against the wife, both the parties being domiciled and resident in Florida. The wife brought a separate action concerning an alleged second marriage in England, in which the
validity
of the decree was in issue. In the Court of Appeal the alleged irregularity in service of process was held not to be a ground for questioning the
validity
of that decree in the action brought by the wife in the English Court. As the Master of the Rolls made clear in Pemberton
v
Hughes (later cited with approval by the House of Lords in Salveson Or
Von
Lorang
v
Administrator of Austrian Property [1927] AC 641):
"If a judgment is pronounced by a foreign Court over persons within its jurisdiction and in a matter with which it is competent to deal, English Courts never investigate the propriety of the proceedings in the foreign Court, unless they offend against Englishviews
of substantial justice. Where no substantial justice, according to English notions, is offended, all that English Courts look to is the finality of the judgment and the jurisdiction of the Court, in this sense and to this extent - namely, its competence to entertain the sort of case which it did deal with, and its competence to require the defendant to appear before it. If the Court had jurisdiction in this sense and to this extent, the Courts of this country never inquire whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed."
Vaughan
Williams LJ reiterated these principles in the following terms, Rigby LJ holding:
"…we have no right in this action to inquire into the question whether or not the Court of Florida did or did not act upon a correctview
of the law and procedure of its own State… It seems to me that, on principle and authority, the Courts of this country are bound to assume that the Florida Court understood its own procedure and law, and that the evidence of experts ought not to have been resorted to… I think that the result of all the cases is that a decision of a proper Court having, in accordance with general principles of law recognised by our Courts, sole jurisdiction over the subject-matter of the action and the parties thereto must, by the Courts of this country, be treated as the only competent tribunal to deal with the question raised in the divorce action. Even though it were possible to point out some mistake as to the municipal procedure or law, the Courts of this country ought not, on that ground, to override the actual decision."
And
Vaughn
William LJ stating:
"It is said that the evidence of the foreign experts shews that the judgment is a nullity by reason of the defective process, and that we are bound by their evidence as to what the foreign law is; but this evidence does not shew, in regard to judgments generally, that if, in civil proceedings in Florida, the judgment had been relied on, the party against whose interest it was set up would not have had to shew that the judgment had been set aside."
v
Hughes, the court may only inquire into the procedure by which the foreign court has exercised its jurisdiction where it can be said that a substantial injustice has been committed. In the context of cases concerning marriage the same principle has been articulated. In Salveson Or
Von
Lorang
v
Administrator of Austrian Property the wife, who was domiciled in Germany, and who faced a claim in Scotland of multiple poinding in respect of a fund consisting of moneys and shares in moveable property based on her marriage in France to an Austrian national, defended the claim on the grounds that her marriage was null and
void
due to failure to comply with French local form and, therefore, she had never been an Austrian national. No later French law which would apply nor any circumstances had cured the invalidity. A German court gave judgment that the marriage was null and
void
in proceedings where the husband was represented but did not appear. The wife produced the decree of nullity and the Scottish court dismissed the claim. When the matter came before the House of Lords, the question before the House was whether the judgment of the German Court as to the
validity
of the marriage was conclusive, or whether the issue of the
validity
of the marriage was still open to question by the courts here,
Viscount
Haldane observing that "the case before us is, however, not one of dissolving an existing marriage but of deciding that no
valid
marriage ever took place". In this context, the House of Lords held that where the parties are domiciled in a foreign country a decree of nullity of marriage pronounced by a competent court of that country will, in the absence of fraud or collusion, be recognized as binding and conclusive by the Courts of England and Scotland, unless it offends against British notions of substantial justice.
v
Yates [2014] 2 FLR 1126, Duhur-Johnson
v
Duhur-Johnson (Attorney-General Intervening) [2005] 2 FLR 1042, Liaw
v
Lee [2015] EWHC 1462 (Fam) [2016] 1 FLR 533 and Radseresht
v
Radseresht-Spain [2017] EWHC 2932 (Fam) [2018] 1 FLR 1443). However, each case falls to be decided on its own facts. Whilst in this case the husband did not have formal notice of proceedings in this case, for the reasons I have given, I am satisfied he was aware of those proceedings and instructed a lawyer to represent him in those proceedings, albeit he thereafter adopted his characteristic dilatory approach to participation in those proceedings. In the circumstances, as I have found, the Court of First Instance of Meknes was cognisant of the case of both parties when it made its decision in 2013, in proceedings in which both parties were represented. In the circumstances, in my judgment it cannot be said that the manner in which the proceedings in Morocco in 2013 were conducted offended against English
views
of substantial justice. In the circumstances, this court is not entitled to go behind those proceedings merely on the grounds of improper service.
Essential
Validity
valid
marriage cannot have been constituted in this case because he did not consent to marriage under the law of his domicile, consent being an aspect of capacity and it being well settled that capacity falls to be determined under the law of the relevant party's domicile in accordance with the decision in Qureshi
v
Qureshi. Accordingly, the husband submits that no
valid
marriage can have taken place, notwithstanding compliance with local form in the lex loci celebrationis.
valid
if by the law of either party's domicile he or she does not consent to marry the other. In this context, a distinction was drawn by the Court of Appeal in Apt
v
Apt between the process of giving consent and the existence of consent, the former being a matter for the lex loci celebrationis and the latter for the law of domicile:
"In our opinion, the method of giving consent as distinct from the fact of consent is essentially a matter for the lex loci celebrationis, and does not raise a question of capacity, or, as Mr. Foster preferred to call it, essentialvalidity."
v
Apt, having drawn a distinction between the method of giving consent, which the court considered to be a question to be determined in accordance with the lex loci celebrations, and the existence of consent, the Court of Appeal noted that there was no question of incapacity in the wife domiciled in England and upheld the proxy marriage which had occurred in Canada.
"It was argued that we should only recognize foreign retrospective legislation if the spouses in some way consented to its operation, but that argument is based on a misapprehension of what such retrospective legislation sets out to do. It has no concern with the state of affairs at the time when it is enacted: its purpose is tovalidate
the original ceremony, and if there was then the necessary consent to marry, that is all that matters."
validity
in this case that prevents the court from recognising the Moroccan marriage.
Public Policy
validity,
I am satisfied that the marriage falls to be recognised by this court under the principle of locus regit actum unless to do so would be objectionable for reasons of public policy. Having considered carefully the submissions made on behalf of the husband, I am satisfied that there are no grounds of public policy under which to refuse recognition of the marriage.
v
Sir John-Milmay [1938] AC 1 at 12 the House of Lords made clear that the doctrine of public policy should only be invoked in clear cases in which the harm to the public is substantially incontestable and does not depend on "the idiosyncratic inferences of a few judicial minds". Within the context of rights conferred by foreign decisions, in Kuwait Airways Corp
v
Iraqi Airways Corp (Nos 4 and 5) [2002] UKHL 2 AC 883 at [15] to [18] Lord Nicholls of Birkenhead stated that:
"[15] Conflict of laws jurisprudence is concerned essentially with the just disposal of proceedings having a foreign element. The jurisprudence is founded on the recognition that in proceedings having connections with more than one country an issue brought before a court in one country may be more appropriately decided by reference to the laws of another country even though those laws are different from the law of the forum court. The laws of the other country may have adopted solutions, or even basic principles, rejected by the law of the forum country. These differences do not in themselves furnish reason why the forum court should decline to apply the foreign law. On the contrary, the existence of differences is thevery
reason why it may be appropriate for the forum court to have recourse to the foreign law. If the laws of all countries were uniform there would be no "conflict" of laws.
[16] This, overwhelmingly, is the normal position. But, as noted by Scarman J in In the Estate of Fuld, decd (No 3) [1968] P 675, 698 , blind adherence to foreign law can never be required of an English court. Exceptionally and rarely, a provision of foreign law will be disregarded when it would lead to a result wholly alien to fundamental requirements of justice as administered by an English court. A result of this character would not be acceptable to an English court. In the conventional phraseology, such a result would be contrary to public policy. Then the court will decline to enforce or recognise the foreign decree to whatever extent is required in the circumstances.
[17] This public policy principle eludes more precise definition. Its flavour is captured by the much repeated words of Judge Cardozo that the court will exclude the foreign decree only when it "wouldviolate
some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal": see Loucks
v
Standard Oil Co of New York (1918) 120 NE 198, 202 .
[18] Despite its lack of precision, this exception to the normal rule is well established in English law. This imprecision, evenvagueness,
does not invalidate the principle. Indeed, a similar principle is a common feature of all systems of conflicts of laws. The leading example in this country, always cited in this context, is the 1941 decree of the National Socialist Government of Germany depriving Jewish émigrés of their German nationality and, consequentially, leading to the confiscation of their property. Surely Lord Cross of Chelsea was indubitably right when he said that a racially discriminatory and confiscatory law of this sort was so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all: Oppenheimer
v
Cattermole [1976] AC 249, 277-278 . When deciding an issue by reference to foreign law, the courts of this country must have a residual power, to be exercised exceptionally and with the greatest circumspection, to disregard a provision in the foreign law when to do otherwise would affront basic principles of justice and fairness which the courts seek to apply in the administration of justice in this country. Gross infringements of human rights are one instance, and an important instance, of such a provision. But the principle cannot be confined to one particular category of unacceptable laws. That would be neither sensible nor logical. Laws may be fundamentally unacceptable for reasons other than human rights
violations."
"If the respondent is right, then it is possible for foreign legislation to alter the status of English people who were neither domiciled, resident nor present in the foreign country when the legislation was passed nor at any time thereafter. It is certainly unusual that foreign legislation should have that effect whether it purports to be retrospective or not, but I do not think that it can be laid down as a universal rule that it can never have that effect and therefore it is necessary to consider more closely the circumstances of cases like the present case."
v
Khan, the Court of Appeal emphasised that no one can be forced to marry and a person can change their mind and break their promise to do so. However, that conclusion was expressed in the context of a case concerning an alleged marriage under English law in which there had not been compliance with local form. Whilst the general proposition articulated in Akhter
v
Khan must be relevant to the question of public policy in this case, once again Starkowski makes clear the position in the context of a foreign marriage cases where there has been compliance with local form, in the form of retrospective legislation. Within this context, and as I have found, this is not a case in which the husband was unaware that the retrospective legislation comprising Art 16 of the Moroccan Family Code was being invoked. The marriage to which the husband now objects arose by operation of law as the result of legal proceedings in respect of which, as the court has found, he was aware, in which he was represented, in which he had the opportunity to make representations and in which he did make, albeit cursory, representations objecting to the relief sought by the wife. Further, the husband thereafter challenged the resulting decision both by way of proceedings for perjury and by way of an appeal, in which proceedings he was again represented and which upheld the initial decision. In these circumstances, and where the House of Lords made clear that the fact that a retrospective foreign law may alter the marital status of an English person who is neither domiciled, resident nor present in the foreign country when the legislation was passed nor at any time thereafter will not necessarily be objectionable on the grounds of public policy, I do not consider that in this case it is contrary to public policy that the courts of this jurisdiction recognise in this case the outcome of the operation of Art 16 of the Moroccan Family Code in force at the relevant time.
CONCLUSION
valid marriage having regard to the principle of locus regit actum. The husband has not demonstrated to the satisfaction of the court that circumstances exist to justify the court not recognising the Moroccan marriage on the grounds of public policy.