Log on
Browse content

Asaad v Kurter [2013] EWHC 3852 (Fam)

Legal Materials Copyright Statement & Disclaimer

Decision on nature of a ceremony which took place in a Syriac Orthodox Church in Syria and whether the Petitioner was entitled to a decree of divorce, nullity or no remedy at all. A decree of nullity was made.

  • In brief: Here we have a respondent seeking to dismiss a divorce petition on the grounds that there had never been a marriage in the first place. 

    The petitioner-wife ("W") was Syrian and the respondent-husband ("H") was Turkish. They had had a "marriage ceremony" in Syria in the Syriac Orthodox Church. Although W was able to produce a "marriage certificate", the marriage had not been registered with the Syrian authorities and nor had permission for the marriage been obtained - as was required - as H was not a Syrian national. 

    Following the ceremony, the couple had moved to the UK. After two years, they separated with W subsequently filing a divorce petition. H asserted that the court had no jurisdiction and sought dismissal of the petition on the basis that there had never been a marriage, the ceremony having been merely a "blessing".  

    The case came before Mr Justice Moylan who had to consider:- 

    • the nature of the ceremony; 
    • the effect of the ceremony, in the light of the its non-registration, on permission and registration; and 
    • the remedies, if any, available to W under English law.

    Now, although W had initially sought a decree of divorce (asserting that there had been a valid marriage) she subsequently sought either:-

    • a decree of divorce to be predicated on a declaration that the marriage was valid by presumption, relying on both the ceremony and period of cohabitation;  or
    • a decree of nullity on the basis that, although the failure to comply with the formalities of Syrian law rendered the marriage not valid, it was still sufficient to entitle her to a nullity decree.

    The court heard oral evidence from both parties as well as Archbishop Dawod of the Syriac church, who knew the couple and had not only provided W with a religious divorce but had done the same for H in respect of a previous marriage. The court also had before it various photographs, videos and documents provided by W in respect of the ceremony and subsequent events.  

    The court also had written expert evidence confirming that, in the absence of the necessary registration/permission required, the marriage would not be valid under Syrian law. Unfortunately, the expert then went on to erroneously conflate concepts from Syrian and English law and wrongly asserted that because the marriage was not legal under Syrian law it was not legal under UK law and was therefore a "non marriage". In response to further questions, confirmation was provided that Syrian law did recognise the concept of a "non marriage" but not that of a "void/voidable marriage". 

    H submitted that the ceremony was merely religious and did not create even a void marriage.

    In reaching his decision, Moylan J dealt first with the nature of the ceremony. He preferred the evidence of W and the Archbishop, opining that he could find no reason why the latter would have - as alleged by H - forged documentation. He concluded therefore that the ceremony had been intended by both parties to be a marriage ceremony.

    He then went on to consider the effect upon the ceremony under Syrian law of the failure to register or seek permission. He reiterated his concerns about the conflation of English and Syrian law and, although he considered that he too might be seeking to interpret this by reference to English law, Moylan J concluded that as no legal marriage was effected, there was therefore no marriage.

    He then turned whether W was entitled to any remedies under English law i.e whether or not she was entitled to a decree of nullity. Having conducted a comprehensive survey of the relevant statues and case law, he summarised that:-

    • whether a defect makes a marriage valid or invalid is a matter to be determined by the applicable law being ,in the case of the formalities of marriage, the law of the place where the marriage was celebrated;
    • the English courts must determine the effect of the foreign law by reference to English law concepts - if the applicable foreign law determines the effect of the defect by reference to concepts which clearly (or sufficiently) equate to the same concepts in English law then the English court is likely to apply those concepts.  However, if the foreign law does not, then it is for the English court to decide which English law concept applies; and
    • in any event, it is for the English courts to decide what remedy under English law, if any, is available.

    He considered that the effect of the expert evidence was that, as a legal marriage had not been effected, there was no marriage. Syrian law had no separate concepts of a marriage being void or voidable or a non-marriage. The marriage in this case was clearly not valid and had been described as being either a "non-approved" marriage or a "non-marriage". It would though have been too simplistic merely to take the words "non-marriage" or even "non-existent" marriage and apply those words in an English law sense when Syrian law did not have the same terms.

    It was clear that the ceremony was not though, in English law terms, a non-marriage. It was a ceremony which had been capable of conferring the status of husband and wife had the parties subsequently complied with the necessary formalities. It was not "so deficient" that it could be described in English law terms as a "non-marriage".

    Moylan J found that it was a marriage which was not valid as a result of a failure to comply with the required formalities and as such was to be properly described in English law terms as a void marriage. Accordingly, W was entitled to a decree of nullity.


Published: 18/02/2014

Bookmark this item




Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.