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Hayley Trim's Analysis: Are you married?

Date:8 JUN 2012

Hayley Trim, Family Law PSLThis is a question which the husband and wife (so called here for convenience) in the recent case of Dukali v Lamrani [2012] EWHC 1748 (Fam), would have undoubtedly answered in the affirmative, until the husband's divorce solicitors suggested otherwise.

The husband was Moroccan, the wife had dual British and Moroccan nationality. They married at the Moroccan Consulate in London in a civil ceremony conducted by a qualified Moroccan Udul or Adoul (a notary). It was not a religious marriage conducted by an Imam, although the husband and his family in particular wanted and understood that the marriage would be recognised by Islam. Both the husband and the wife intended to and believed they had entered a marriage which was valid under English as well as Moroccan law. The Moroccan Consulate shared that view (and gave evidence to that effect).

The marriage lasted about 7 and a half years, the couple had a child together and the matrimonial home (which comprised most of the assets and was in the husband's name) was in England.  The wife sent the husband a draft English divorce petition. Before she issued it, the husband began divorce proceedings in Morocco and obtained a divorce there which made meagre financial provision for the wife. The husband defended the wife's petition in England on the basis that there had been no valid marriage. The wife applied under Part III Matrimonial and Family Proceedings Act 1984 for provision further to the Moroccan divorce. The husband, supported by the Attorney General, contended that since there had been no marriage, the wife should not be granted leave to apply.

Holman J expressed sympathy for the wife's plight but held that this was a non-marriage. Although both the husband and wife had believed that the marriage was valid in England and knew of other Moroccan nationals who had married this way in the same belief, there had been no marriage as far as English law was concerned. The marriage 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 a void marriage because it did not even purport to be a marriage under the provisions of the Marriage Acts.

The presumption of marriage could not avail the wife here since it required long cohabitation and 7 or 8 years was not enough. Further, since the only ceremony conducted was not effective as a valid or even a void marriage in English law, there was simply no room for applying the presumption.

There was no doubt that these parties intended their marriage to have legal consequences and indeed it did actually have legal consequences in Morocco. If they had travelled to Morocco and done there exactly what they did at the consulate in London, then their marriage would unquestionably have been valid not only in Morocco but recognised as such in England as well. However because they did not comply with the lex loci (ie the requirements of the marriage ceremony in the place where it was celebrated - England), there was no marriage. This also prevented the wife from applying under Part III MFPA because the English Court could never have granted a decree of divorce or nullity, there having been no marriage under English law.

It seems therefore that the wife could be left with only a potential Schedule 1 Children Act claim, and no claims for herself. So it's always worth checking that even clients who say they have been married in a "civil" ceremony are indeed legally married.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

Contact Hayley on Twitter: @HayleyTrim

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