Family Law Hub

Dukali v Lamrani [2012] EWHC 1748 (Fam)

  • In a tweet: A non-marriage cannot be a marriage for Part III MFPA 1984 purposes 

    Summary: A wife's ("W") application for leave to apply for financial relief under Part III Matrimonial and Family Proceedings Act 1984 ("Part III MFPA 1984").

    The husband ("H") was Moroccan and W had dual British-Moroccan nationality.  They were both well educated and had lived if not all their lives, a substantial part of their lives, in England.  At the time of the hearing, H was aged 44 and W was aged 33.  They had married in a Moroccan civil ceremony at the Moroccan Consulate in London in 2002.  H had subsequently purchased a flat in his sole name which was their family home (and only significant asset) and, in 2006, W gave birth to their only child.  The couple, despite continuing to live under the same roof, had effectively separated in 2009; in May 2010, W presented a petition for divorce in the Principal Registry. H subsequently filed an answer in those proceedings in which he admitted the ceremony of marriage had taken place  but alleged that it had not created a marriage capable of recognition or dissolution under English law.  

    In accordance with good practice, W's solicitors had sent a draft divorce petition to H some months before W's petition was actually filed.  That had prompted H to act and, in April 2010, he filed a divorce petition in Morocco.  In June 2011, the Moroccan divorce was finalised.  That divorce made very modest financial provision for W and did not deal with the family home or its value.  

    W sought to rely upon the Moroccan divorce as triggering her right to apply for financial relief after an overseas divorce under Part III MFPA 1984.  H argued that Part III MFPA 1984 had not been triggered because:

    • there was no marriage recognised in England; and 
    • because, although he had himself applied for and obtained the Moroccan divorce, that divorce should not be recognised in this jurisdiction.  

    The Attorney General ("AG") intervened in these proceedings and supported H's position.  The AG submitted that public policy firmly required that a marriage ceremony conducted in England and Wales that was entirely outside the scope of the Marriage Act 1949 could have no legal consequence as a marriage.  

    The issue before the court therefore was whether or not W could establish that there had been a marriage within the meaning of s.12(1)(1) MFPA 1984 and, if so, whether the Moroccan divorce was recognised as valid in this jurisdiction.  

    Held: W's application for leave to apply for an order for financial relief under Part III MFPA 1984  was refused.  

    Firstly, Holman J considered the position of the Moroccan Consulate.  The Consul General had written a number of times during the proceedings to set out their position on the status of marriage ceremonies taking place on their premises.  Relying on the provisions of the Vienna Conventions on Diplomatic and Consular Relations, the Consul General had stated that a Moroccan civil marriage conducted at the Consulate in London in full compliance with Moroccan family law was valid under English law.  When the marriage had taken place, Holman J was satisfied that both H and W had been under the impression that their marriage was of legal effect both in Morocco and in England.  However, he categorically stated that it had been established that the Moroccan Consulate in London was not and had never been registered or approved by the General Register Office or the local authority as a place or venue for a marriage.  This meant that this was a marriage that had been contracted wholly in England, even although within the premises of the Moroccan Consulate.  

    Reviewing the case law authority on the issue (including the recent decent decisions in Hudson v Leigh [2009] EWHC Fam 1306, Al-Saedy v Musawi (Presumption of Marriage) [2010] EWHC Fam 3293 and El Gamal v Maktoum [2011] EWHC Fam B27, Holman J concluded that it was well established that under English law a ceremony could create:

    •  a valid marriage; or 
    •  a void marriage (i.e. one which is capable of being annulled); or 
    •  a non-existent marriage.  

    Following the reasoning of Mr Justice Bodey in cases such as Hudson v Leigh,  Holman J agreed that "questionable ceremonies" had to be dealt with on their individual facts taking into account a number of factors including whether the key participants, and especially the officiating official, believed, intended and understood that the ceremony would give rise to the status of lawful marriage under English law.  Quoting Bodey J in El Gamal v Maktoum

    "I have no doubt that intention is relevant to the status achieved or not achieved by a questionable ceremony, as being one of the many considerations which need to be taken into account.  It is particularly relevant in the presumably unusual circumstances where the parties did not intend to create a valid marriage or where they realised that for some reason they would not be able to do so.  But the converse does not apply.  It is not the law, in my judgment, where no or minimal steps are taken to comply with the Marriage Acts and so the marriage does not set out or purport to be a marriage under those Acts, that it nevertheless suffices if the participants hopefully intended, or believed, that the ceremony would create one." 

    In her submissions, W had relied heavily upon the case of Chief Adjudication Officer v Bath [2000] 1 FLR 8 where the Court of Appeal had held that a long cohabitation as man and wife had given rise to a presumption of a valid marriage despite the marriage ceremony itself manifoldly not complying with the Marriage Act 1949.  Following a detailed consideration of that case, Holman J observed that the period of cohabitation between W and H (about seven or eight years) had not been long enough to give rise to this presumption.  He concluded:

    "In my view, for the purpose of granting matrimonial relief under the Matrimonial Causes Act 1973, this marriage was neither valid nor void but was non-existent.  It was not valid because there was manifold non-compliance with every requirement of the Marriage Acts as to notification, use of a registered or approved venue, form, authorisation of the officiant and subsequent registration.  It was not void because . . . it did not even purport to be a marriage under the provisions of the Marriage Acts." 

    So, having concluded that it was a non-existent marriage or non-marriage for the purposes of the Matrimonial Causes Act 1973, Holman J then had to consider whether or not a non-existent marriage could nevertheless qualify as a marriage for the purposes of Part III MFPA 1984.  Commenting that there appeared to be no authority on the issue, and that Parliament had not defined marriage within that particular piece of legislation, Holman J stated that there was no doubt that both parties had intended their marriage to have legal consequences.  Despite having considerable sympathy for the position W had found herself in, Holman J nonetheless accepted the submissions made on behalf of H and the AG that the word "marriage" in s.12 and in Part III MFPA 1984 must mean a marriage which was valid or at least void under English law.  His conclusion was strengthened by his analysis of Part III MFPA 1984  and that the legislation had been  designed to allow an English court to make an order where it could have regarded the parties as married and could have made a financial order but for the foreign divorce or annulment.  He therefore refused to grant W leave to apply for financial relief on the grounds that she could not demonstrate any marriage to which s.12 MPFA 1984  could apply.  Consequently, Holman J did not need to deal with the issue of the recognition of the Moroccan divorce.

Case note, published: 01/06/2012

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Items referring to this

  • A certificate of entitlement to a decree of nullity was granted to the wife, meaning that she was permitted to pursue a claim for financial remedy. The court rejected the husband's argument that there was nothing capable of recognition as a marriage. Judgment, 27/02/2017, free
  • Judgment, 31/07/2012, free
  • A long running case in which the 'W' claimed that she and the 'H' had been married in Nigeria and that she could pursue financial relief proceedings in England. The 'W' had brought proceedings by way of various petitions: the 2003 petition, the 2003 amended petition, the 2004 petition and the 2004 amended petition. The Nigerian court found that no marriage ceremony had taken place and so the issues for the court to decide were: 1) The Respondent's application to dismiss and/or strike out the 2003 Amended Petition; 2) The Respondent's application to set aside an order granting permission for the Petitioner to bring proceedings under the 1984 Act and/or for an order dismissing or striking out those proceedings; 3) The Petitioner's application for orders, directions and interim payments in her application under the 1984 Act; 4) The Respondent's application to dismiss and/or strike out the 2004 Amended Petition; 5) The Petitioner's application for orders, directions and interim payments in her application made by the 2004 Amended Petition; 6) The Respondent's application for repayment of the sums he has paid by way of maintenance pending suit in the 2003 Petition and in the proceedings under the 1984 Act. Judgment, 15/10/2013, free
  • Judgment, 22/11/2012, free
  • Judgment in long-standing dispute where the wife is attempting to enforce undertakings after her Part III application, issued as a result of alleged breach of the undertakings, had failed when the Court of Appeal ruled that there was no jurisdiction. Judgment, 03/12/2013, free

Published: 01/06/2012

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