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David Hodson on International Family Law: A dead parrot or simply pining for the fjords - or no parrot at all?

Sep 29, 2018, 21:30 PM
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Date : Apr 5, 2012, 06:47 AM
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International Family Law Practice by David Hodson

David Hodson

El Gamal v Al Maktoum [2011] EWHC EWHC, just reported, is another High Court decision concerning recognition of (foreign and other) marriages in which the court has found not that the marriage was voidable but that there was no marriage at all. The so-called concept of non-marriage. For many years, if the marriage had any form of validity abroad but for some reason was not entitled to recognition in England, there would be reference to the law of nullity. The marriage may be declared void or voidable. However this created a number of problems, not least because nullity gave rise to divorce-similar financial claims. Gradually the English courts have given greater weight to the concept of non-marriage or non-existent marriage.

The husband in Burns [2008] 1 FLR 813 had argued that as the wife would not have been entitled to a decree of nullity in California where the marriage had taken place in a hot air balloon, she should not be entitled to a similar remedy in England. In this case the weather conditions had prompted the hot air balloon journey (and its accompanying wedding ceremony) to take place at a time before the marriage license on the ground had been obtained! Coleridge J examined the concept of non-marriage and encouraged judicial debate.

It was particularly applicable in Hudson v Leigh (Status of Non-Marriage) [2009] 2 FLR 1129 where the couple went through a religious ceremony at their home in South Africa with the intention of a civil ceremony in England. However the couple concerned and the cleric conducting the religious ceremony knew the ceremony was a complete sham and incapable of creating the status of marriage - unlike the many guests who thought they were witnesses at a wedding. The court held the marriage was not merely void. There was no marriage at all.

Dicey and Morris have also commented on possible factors for a non-marriage based on a questionable ceremony.

Al-Saedy v Musawi [2011] 2 FLR 287 examined what was needed to rebut the presumption of marriage, holding that someone seeking to rely on the presumption had to be able to point to some evidential foundation for the possibility that there had been a marriage ceremony. This case involved complex consideration of a ceremony of marriage in Damascus. An even harder task was with Parker J in R v M [2011] EWHC 2132 which concerned particular marriage traditions in a non-Muslim sect within Pakistan, an Islamic state and under civil Islamic law. Although it was not possible to register their marriage internally within Pakistan, the court found the ceremony had created a civil status capable of recognition.

In El Gamal v Al Maktoum, a case receiving some publicity in the national press as it involved senior members of the Royal family of Dubai, a marriage took place in a private flat in Knightsbridge. The woman alleged it was capable of creating a marriage albeit a void marriage because it failed to comply with the English marriage law requirements, and therefore she would have nullity equivalent of divorce claims. The man opposed this saying it was no marriage at all and therefore at most only liable for Sch 1 claims, albeit such claims have resulted in much higher awards in the last couple of years. The court accepted the evidence of the woman that there had been an Islamic wedding ceremony. However even a void marriage must comply with the formal requirements of the Marriage Act 1949 to create a status recognised as a marriage.

The judge found that a wedding ceremony conducted secretly with no writing and other curious features was unlikely to be recognised in Egypt, the mother's home country. There had been no attempt by either party to be part of a ceremony set up to or purporting to comply with English marriage law formal requirements. Accordingly it was not a void marriage but rather a non-marriage. The man was only liable under Sch 1 CA in respect of their child.

The law on recognition of foreign marriages is quite historic and relatively formal, as is much of family law concerning issues of status. Nevertheless family court judges have shown themselves alive to the wider issues; not just the declaration or status of the relationship but the consequential claims arising. Some marriage ceremonies are not simply questionable and voidable but simply no marriage at all.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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