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Null and void (or not)

A Local Authority v X and Another 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3274.html

This was a set of care proceedings, within which the Local Authority applied under the Inherent Jurisdiction for a declaration that the marriage the child had entered into should not be recognised in English law.  It was an application supported by everyone, but ultimately refused. The reasons for the refusals are interesting and potentially applicable to other cases.

The child, X, underwent a marriage in Pakistan when she was aged 14.  A gun was produced to compel X to undergo the marriage against her will, and she was also abused by her “husband”

The LA position was that this was an unlawful marriage, given that X was domiciled in England at the time of the ceremony and was considerably under age.

The impact on the care proceedings was this :-

That X conceived a child as a result of that marriage. The father of that child would have parental responsibility IF the marriage was lawful, but if it was not lawful he would only have PR if X agreed to it (either by registering him as the father on the birth certificate, or entering into a parental responsibility agreement)

That would have consequential implications for any proceedings taking place in relation to X’s baby – whether the man who married X (and by all accounts was pretty vile towards X) would be a part of the care proceedings.

I hold by this judgment, as a mixed finding of fact and law for the purpose of the care and placement proceedings, (but not making any declaration to this effect) that the marriage between ‘X’ and the father of the baby is, on a balance of probability, void. Under English law, the father was not validly married to the mother on the date of the baby’s conception or birth. Section 1(3)(a) of the Family Law Reform Act 1987, read together with section 1(1) of the Legitimacy Act 1976, provides that a child shall nevertheless be treated as legitimate (with the consequence that the father does have parental responsibility) if at the time of the child’s conception either of the parties reasonably believed that the marriage was valid. However section 1(1) of the Legitimacy Act 1976 is subject to subsection (2) . Subsection (2) provides that subsection (1) only applies where the father of the child (viz. of the baby in this case) was domiciled in England and Wales at the time of the birth which, patently, the father of this baby was not. I therefore hold that the father does not have parental responsibility for the baby.

Now, you may well be thinking, that as a result of the judge finding as a fact that the marriage was probably void and that father does not have PR, that going on to end the marriage by making a declaration would be quite straightforward.

That declaration was sought by the LA and supported by the mother and Guardian.

The Judge was troubled that X could herself apply for nullity of the marriage, and had given this direction earlier

“‘X’ must give consideration as to whether she wishes to issue a petition for a decree that the said marriage is void on the grounds that (i) on the date of the marriage she was domiciled in England and Wales; and (ii) on that date she was under the age of sixteen, so that the marriage was void pursuant to section 2 of the Marriage Act 1949 and section 11(a)(ii) of the Matrimonial Causes Act 1973 (see Pugh v Pugh [1951] P 482). In the event that she voluntarily decides to issue a petition, it should be issued in the Birmingham County Court and an application made for it to be transferred to the High Court of Justice in the Birmingham District Registry

 

 

X had not applied for nullity.

  1. At paragraph 23 of her most excellent position statement prepared for the hearing today, Miss Vanessa Meachin, counsel on behalf of ‘X’ (through her guardian), wrote as follows:

“‘X’ is the victim of a forced marriage and rape. She is sixteen and struggling with the complexities of the two sets of legal proceedings that she is already involved in. It is respectfully submitted that it is unrealistic to consider that she is presently equipped to proceed with a petition for nullity.”

  1. Later, at paragraph 26, Miss Meachin wrote:

“The applicant local authority have set out their position comprehensively as to why such relief is sought and is entirely appropriate. In this respect ‘X’, her guardian and legal team entirely support the position taken by the applicant and commend the relief sought to the court. This is a matter that is capable of being resolved at this hearing.”

  1. In elaboration of what she wrote there, Miss Meachin has added today, with eloquence and cogency, that it is really too much to expect ‘X’, at any rate at her present age and stage in life, herself to take an active step that would be so defiant of her parents and family as herself to petition for a decree that the marriage that they forced her to enter into, as I have described, is void. In effect, ‘X’ and her legal advisors on her behalf seek to shelter behind the application that the local authority have issued, as I have described.

 

 

I would suggest that those are all very appropriate reasons why X would not seek a nullity in her own right, and why if it were lawful for the Court to declare the marriage void, it would be beneficial.

However, as Holman J observed, if there is a statutory remedy which can be exercised in relation to a marriage, the Court is prohibited from using the inherent jurisdiction to declare the marriage unlawful.   [You never fail to learn something in a Holman J judgment]

  1. There is a line of authority, both at first instance and in the Court of Appeal, whereby in certain circumstances courts have made declarations that a marriage contracted abroad is not recognised here for one reason or another. Sometimes that outcome is sought in situations where the party to the marriage lacked mental capacity to contract a marriage and continues to lack mental capacity to take any steps to seek its annulment. Lack of mental capacity, however, and also duress, are not grounds which render a marriage void but, rather, which render it voidable under section 12(c) or (d) of the Matrimonial Causes Act 1973.
  1. This case, however, is different. There may, indeed, have been reasons why the marriage is voidable under section 12 since it was achieved in consequence of duress; but in the present case there is the overarching fact that the marriage is altogether void because of the age of ‘X’. The advocates have sought to rely, in particular, upon the authority of Baron J in B v I (Forced Marriage) [2010] 1 FLR 1721. In that case the young woman in question was already aged sixteen at the time of the ceremony of marriage. It was, however, a forced marriage into which she had been forced by duress. There was no question of the marriage in that case being void, although it was, at its inception, voidable. However, section 13(2) of the Matrimonial Causes Act 1973 has the effect that there is a statutory bar on petitioning for a decree of nullity where a marriage is voidable for duress if more than three years have elapsed from the date of the marriage. In that case, the issue as to the status of the marriage was only raised after more than three years had elapsed, and accordingly at a stage when it was no longer legally possible to obtain a decree of nullity. It was in those circumstances that Baron J was asked to make, and did make, a declaration that the marriage in question was never a marriage which was capable of recognition as a valid marriage in England and Wales.
  1. It is very important to note that at paragraph 14 of her judgment Baron J said:

“A number of authorities have been placed before me which persuade me that judges at first instance and, more importantly, the Court of Appeal regard the inherent jurisdiction as a flexible tool which must enable the court to assist parties where statute fails…” [my emphasis]

  1. At paragraph 16 of her judgment, Baron J quoted a passage from an earlier judgment of Coleridge J in which he had said:

“There is a real stigma attached to a woman in the petitioner’s situation if merely a divorce decree is pronounced and it is desirable from all points of view that where a genuine case of forced marriage exists, the courts should, where appropriate, grant a decree of nullity and, as far as possible, remove any stigma that would otherwise attach to the fact that a person in the petitioner’s situation has been married.”

Baron J continued by saying:

“In this case, nullity is not an option for it is statute barred.”

  1. The facts and legal situation in that case were, therefore, completely different from those in the present case. In the present case statute does not “fail”, for there is no time bar to obtaining a decree of nullity in the case of a marriage which is void. So in this case nullity is “an option” and is not statute barred.
  1. In her judgment in B v I Baron J correctly adverted to subsection 58 (5) of the Family Law Act 1986. That provides as follows:

“(5) No declaration may be made by any court, whether under this Part or otherwise – (a) that a marriage was at its inception void.”

Note that that subsection contains an absolute statutory prohibition on any court making a declaration that a marriage was at its inception void, “whether under this Part or otherwise”. It, therefore, absolutely forbids the making of a declaration, even in the so-called inherent jurisdiction of the High Court, to the effect that a marriage was at its inception void.

  1. As Baron J said in paragraph 12 of her judgment in B v I :

“That term was included in the Family Law Act 1986 to ensure that the Act was not used to circumvent the strict requirements of the Matrimonial Causes Act 1973.”

She continued:

“However, it is clear that the inherent jurisdiction must be used in a manner that is flexible enough to ensure that justice is provided for all. The plaintiff in this case does not seek a declaration that the marriage was void at its inception, rather, she seeks a declaration that there was never a marriage capable of recognition in England and Wales.”

  1. As Baron J herself later said at paragraph 17, the distinction between making such a declaration and a declaration that the marriage was at its inception void is “an extremely fine” one. But, on the facts of that case, Baron J was never faced with the situation where the court might have been able to make a decree of nullity on the ground that the marriage was void or a declaration that the marriage was “at its inception void”. On the facts and in the circumstances of the case with which she was faced, the marriage was never a void one but was, at most, one which was voidable in the discretion of the court on the grounds of duress which fall under section 12 rather than section 11 of the Matrimonial Causes Act 1973.

 

So that presents a problem. Counsel in the case were urging Holman J to follow Baron J’s line and make a declaration that there was never a marriage capable of recognition in England and Wales.   But the difference here was that there was a statutory option available.

  1. It seems to me that there is a fundamental distinction between the facts and circumstances in the case of B v I and those with which I am faced. In the present case, as I have said, this marriage is a void one. If ‘X’ chose to present a petition for nullity, which she has ample age and mental capacity to do, being now aged almost seventeen and of normal maturity and intelligence, then (if satisfied as to the facts) the court could and would pronounce a decree of nullity on the ground that the marriage is void.
  1. There is no statutory gap in this case. If, on the facts of this case, I were to grant a declaration to the effect that the marriage is not recognised in England and Wales, or that there never was a marriage which is capable of recognition in this jurisdiction, I would not be filling a gap. I would, frankly, be bypassing and flouting the statutory prohibition in section 58(5) of the 1986 Act by a mere device. I cannot do that and I am not prepared to do that.
  1. I do understand and have sympathy with the point and position that it might be particularly defiant by ‘X’ of her family for her herself to initiate proceedings for a decree of nullity, although she now has little contact with most members of her family. The reality is that sooner or later she needs fully to resolve her legal status and to face up to the obviously necessary step of obtaining a decree of nullity, not least for the reasons given by Coleridge J in the passage quoted at paragraph 27 above. That, however, is a matter for her own decision, her own timing, and her own choice. For the reasons that I have now given, I simply refused to make the declaration sought.

 

 

One hopes that this issue never crops up again, but sadly such under age marriage continue to occur, and whilst it might be helpful and useful that the child herself does not have to drive the dissolution of the marriage, the inherent jurisdiction does not help where the statutory remedy exists.

{I have to say that my initial instinct was to look at the Forced Marriage (civil protection) Act 2007 for a remedy here, but that doesn’t seem to me to give the Court power to dissolve a forced marriage over and above the existing provisions. }

http://www.legislation.gov.uk/ukpga/2007/20/pdfs/ukpga_20070020_en.pdf

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

7 responses

  1. Nevertheless this is only a secondary remedy because nullifying any forced marriage remains the primary responsibility of the jurisdiction where it was enacted, in this instance, Pakistan, where there one would expect legal remedy under its own legal code to render it void ab initio.

    Smacks to me of post-colonial over-zealousness …

  2. Am probably missing the point here, but I think it is that whilst it is perfectly legal and legitimate for Pakistan to have their own laws on marriage and if they wish to permit 14 year old girls to marry much older men, that if the usual country of residence of the girl is England, then English laws apply to the marriage.

    Is a tricky area, since one is treading on culture, tradition, possibly religion and the whole thorny issue of cultural relativism.

    All one can say is that for girls who live in England, getting married at age 14 is not a marriage we would recognise. I daresay, of course, that some American citizens would be appalled that we sell alcohol to 18 year olds…

    • Yes – fair point – and I agree with you that cultural relativism is part of the multiplicity of factors at play here, but, equally what really lies at root here?

      Isn’t voiding an illegal foreign marriage here simply offering a band-aid to a cancer patient? Smacks of undue influence to me.

      And, what about the crime of forced marriage?
      Investigating the the alleged criminality of the precise circumstances and perpetrators around the marriage to the fullest extent of the law, in order to bring them to justice and to discourage such like etc, especially as I recall production of a gun has been mentioned in the factual matrix of the care proceedings here

      There is evidence other jurisdictions including Pakistan are taking steps to rectify the situation too:.

      | New laws in Pakistan mean greater punishment for forced marriages
      26/01/2012 – See more at: http://www.plan-uk.org/news/news-and-features/new-laws-in-pakistan-for-gender-equality/#sthash.iCyn7Kf5.dpuf

      I guess my point boils down to the extent English family law should interfere with other jurisdictions – for example, what if it were a 14 year-old Mayan boy resident in the UK but of South American parentage, in the same predicament, albeit now as a young dad?

      The statutory position of not recognising marriage of minors whether foreign or domestic is a perfectly valid position, but, the application of judgecraft or word-smithery as in the above Judgement to, effectively void it to mould a desired outcome is something else altogether.

      Many thanks for posting something so intriguing.

      • It is a very tricky one; clearly if there is a culture in some countries that brides can marry at a far younger age than we consider acceptable in the UK and some people who have come from that country continue to hold the belief, are we being patrician in interfering? If the girl in question had married in Pakistan and remained there, there would be no issue for the UK courts. I think the Judge here was trying to avoid the worth-smithery that might have applied in the precedent he was being pointed at. (I can’t really see much difference between what was forbidden in the Baron J case and what she actually did – there’s a distinction there that allowed her to do it, but it was the finest of fine distinctions).

        And I agree, if there really was evidence of that sort of coercion, then it seems some form of criminal offence would merit investigation.

        When you put this in context of the President’s recent speech about the law now being secular, and forced marriage being an example of something that is a bright line that is always beyond the pale, it is interesting and raises the issue of whether there are particular cultures that get less tolerance and leeway than others in our secular courts.

  3. Ashamed to be British

    … however, the Americans would not sell that alcohol to 18 year olds, when in Rome and all that

  4. Holman J was right and frankly I think the distinction which Baron J made was illusory and she was wrong.

    My understanding is that a finding of fact that a marriage was void (not voidable) can be made in proceedings (such as those connected with the devolution of an estate) between other parties and even after the death of one or both parties. It is only a declaration which is barred.

    I must take issue with the submission (see para 21 of the judgment) of counsel for X that she is the victim of forced marriage and rape. The ceremony of marriage took place in Pakistan and Holman J assumed that it was formally valid; by the law including the private international law of Pakistan it may be valid in every sense there. Limping marriages are unfortunate but they occur.

    Now, whether forced intercourse within marriage is rape by the law of Pakistan I have no idea – until not so long ago it was not in England. If it is not, and if the marriage is valid in Pakistan, then the consummation was not rape. Not an attractive thought, but it is not for us to write laws for Pakistan. Counsel should have written “X is the victim of what by English law constitutes forced marriage and rape” – it does not have quite the same zing to it, I know, but advocates should never say anything which might appear to be an abuse of their privilege and I think counsel here, no doubt without considering it, did.

    • I agree entirely with your first paragraph – is one of the reasons I like Holman’s judgments so much. You come to them knowing the outcome, bristling and prepared to be outraged and by the end of them, you invariably think “well, I see why you did that now” – not at all suitable for our soundbite media culture.

      I agree with your last point as well. Purely playing devil’s advocate, can the forced marriage offence not begin by the arrangement to do so, which took place in England, and conveying the child from England to Pakistan for that purpose? I agree entirely that if this girl had never lived in England,the marriage is completely legitimate and probably any ‘consensual’ sex within it. But I agree that your wording is more precise and better conveys the situation.

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