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Asaad v Kurter: The latest round in ‘non-marriage’ cases - is the tide turning?

Lily Mottahedan, barrister at 1 Hare Court, examines the court’s approach in determining whether a marriage was a ‘non-marriage or a ‘void’ or ‘valid’ in the recent High Court judgment in Asaad v Kurter [2013] EWHC 3852 (Fam)











Lily Mottahedan, barrister, 1 Hare Court 

Mr Justice Moylan's decision in Asaad v Kurter [2013] EWHC 3852 (Fam) is the most recent instalment in a series of highly significant cases where the status of marriage in English law has been the nub of the dispute.

In the last five years alone, such cases have included, inter alia, the following (listed for ease of reference):

It is notable that of these seven judgments in only one, (also decided by Mr Justice Moylan) was there a finding that the marriage was valid or void (rather than a 'non-marriage').

As many family lawyers will be all too aware, the significance of such a determination is that a void marriage entitles parties to decree of nullity under s.11 of the Matrimonial Causes Act 1973 and consequential financial remedies under ss.23-24 of the Matrimonial Causes Act 1973 (as upon a divorce). On the other hand, if the ceremony is found to be a 'non-marriage', the Applicant could only potentially have recourse to Schedule 1 to the Children Act 1989 and/or Trusts of Land and Appointment of Trustees Act 1996 (if the facts fit) with the ascendant expense of multiple sets of proceedings.

Asaad v Kurter is now only the second of such recent cases where a marriage was deemed not to be a 'non-marriage', but a void one. The interesting feature of this case is that a ceremony conducted in Syria and which was deemed to be incapable of any form of legal recognition or of attracting consequential financial remedy there (it was 'invalid'), was accorded the status of a void rather than a 'non-marriage' in this jurisdiction therefore entitling the Petitioner to a decree of nullity and the ability to make a financial claim.

Though, in the writer's view, the outcome of the case is to be commended, this case has wider implications which bring into focus the problems faced by those parties who attempted to marry in this jurisdiction without complying with the necessary formalities for creating a valid marriage.

In light of this case, it appears that where the same 'questionable' marriage ceremony was conducted abroad (rather than here), it might be easier to achieve a void marriage rather than one which is deemed, by the law, to be of no consequence at all.

Facts
The Petitioner was Syrian and the Respondent Turkish. Both parties were members of the Syriac Orthodox Church (though in the Respondent's case, only 'at times'). They met in Syria in 2006 and had a ceremony (the disputed ceremony) at the Syriac Orthodox Church in Kamishli, Syria. This was attended by a large number of family and friends on both sides, a reception followed, and there was a wedding album and video of the event.

The parties exchanged rings and signed the Church's marriage register however, the marriage failed to comply with two formalities: (i) no marriage was registered with the Syrian authorities and (ii) no permission was obtained by the Ministry of the Interior (a requirement for Syrian nationals marrying non-Syrians). The Petitioner's status remained registered as 'single' vis-à-vis the Syrian authorities.

The parties moved to England – the Petitioner on a spousal visa. They separated in 2009.

The parties' cases
The Petitioner argued that she was entitled to a decree of divorce relying on the presumption of marriage, or, on her alternative case, a decree of nullity, on the basis that the ceremony which took place was a void marriage due to the parties' failure to meet some of the requisite formalities akin to what happened in Burns v Burns. She claimed that the parties were first engaged in 2006 then went about arranging their wedding. She asserted that the Archbishop who conducted the ceremony, the parties, and the guests all understood and intended the ceremony to be a legal marriage (per the Hudson v Leigh test set out by Mr Justice Bodey). The Petitioner was supported by the extensive evidence of the Archbishop who said that the ceremony was a marriage ceremony and intended as such (rather than a blessing).

The Respondent's case was that the ceremony was a religious blessing (or alternatively, a non-legal religious marriage as in El Gamal v El Maktoum) and it was that which was intended by the parties (as was found in Hudson v Leigh). He also argued that this 'purely religious' ceremony was one which, for its failure to meet the necessary legal formalities was a 'non-marriage'.

The court's key factual findings
The court rejected the Respondent's evidence and found that the ceremony was a marriage ceremony (not a blessing) and was intended as such by both of the parties and all the relevant participants. This was supported by the wealth of evidence the Petitioner adduced in support of her case demonstrating that the ceremony was a marriage.

Moreover, it was a ceremony which, was deemed not to be "so deficient of the character of marriage" as to make it a "non-marriage" under English law (Burns v Burns, para.46)

Thus, bar the matter of obtaining permission and registration, all other necessary formalities had been met (though, this is the writer's assumption as they are not set out in the judgment) and the ceremony had all the "hallmarks" of a marriage capable of conferring upon the parties the legal status of husband and wife (a term used in Gereis v Yagoub [1997] 1 FLR 854).

Expert evidence
There was an issue with respect to the equivocal and initially inaccurate expert evidence on Syrian marriage law on which the judge sought clarification by putting questions of his own. However, once that evidence was clarified, it was demonstrated that in the eyes of Syrian law, the ceremony which took place was not a legal marriage, had not conferred upon the parties the status of husband and wife, and was therefore (to adopt the words used by the expert)  "invalid". It also emerged that Syrian law does not sub-categorise invalid marriages into concepts of void or non-marriages: you are either married, or you are not and if not, then there are no remedies available.

Discussion: The court's approach
On the presumption of marriage
The court found that the Petitioner failed in her primary case that the marriage was valid in reliance on the 'presumption of marriage'.

The court referred to Rayden and Jackson on Divorce and Family matters, 18th edition, para 7.2 which summarises the concept:

"Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity will be presumed, in the absence of decisive evidence to the contrary"

Thus, it appears that the person seeking to rely on the presumption (who in any event, must be a cohabitant) needs to show at least some evidence that a ceremony has taken place. Subsequently, the burden is on the person asserting that the marriage was invalid to rebut the presumption either (i) as a matter of fact by producing conclusive evidence that no ceremony ever took place (not a straightforward thing to do) or (ii) by producing decisive expert evidence (or by reference to the provisions of the Marriage Act 1949 if the marriage took place in this jurisdiction) that the ceremony that did take place was not capable of creating a formally valid marriage.

Indeed, the latter is what happened in this case and it appears to have been accepted by the Petitioner's team at the outset. Thus, the presumption was rebutted and it fell on the Petitioner to argue her secondary case, that the marriage was null and void.

The court's approach on the presumption point mirrors that of the court in Al-Saedy v Musawi (the 'religious agreement' ceremony in Beirut) and Dukali v Lamrani (the marriage in the Moroccan embassy in London) where it was positively established that the ceremony which did take place, was not one which created a legally valid marriage by virtue of its failure to comply with the requisite formalities under the Marriage Act 1949 (as those ceremonies took place in this jurisdiction) and therefore the presumption could not apply.

On the void versus non-marriage question
The more interesting question in this case was that once the court determined that (i) as far as the parties were concerned, they understood and intended the marriage to be a legally valid one – thus preferring the wife's evidence (ii) that under Syrian law, due to the fact that permission was not obtained by the Ministry of the Interior and the marriage was not formally registered, the marriage was invalid and not capable of recognition there – did that make the ceremony a 'non-marriage' or a 'void marriage' under English law?

Validity of marriage contracted abroad
In a marriage contracted abroad, reference is made to s.14 of the Matrimonial Causes Act 1973. That provision leads to the consideration of the rules of Private International law.

In this case, the court referred to Dicey, Morris & Collins, The Conflict of Laws 14th ed (2006) p. 789 where it is said that the formal validity of a marriage contracted outside of England and Wales is governed by the law of the country in which it was celebrated – the lex loci. If the marriage is formally valid in that country, it is formally valid everywhere and the converse is true. In this case however, the marriage was not formally valid in Syria, and therefore, quite simply, could not be formally valid here – the English court could not alter that conclusion.

The distinction between the defect and its effect
The next question was: is the fact that the marriage is 'invalid' in Syria the beginning and end of the matter? The court found that it was not.

The court examined the older authorities of De Reneville v De Reneville [1948] P.100 (and others), a case concerning the validity of a French marriage, and Cheshire, North & Fawcett, Private International law, 14th Ed. (2008) p.878 which, prima facie, appeared to lend support to the notion that the foreign law which decides on formal validity also decides on the "extent of the defect" and "the effect of the defect" – i.e. whether the ceremony was void (or voidable) (or say, a non-marriage, though no such concept appeared to have existed at the time).

However, the court distinguished the scenario in De Reneville and the guidance in Cheshire on the basis that those authorities (1) implicitly assume that the foreign law's terms of void and voidable, if they even have such terms, mean the same thing as they do in English law (which is not always the case, see Burns v Burns) (2) do not cater for the third alternative categorisation where the ceremony might be a 'non-marriage' and (3) there is no suggestion in those authorities that foreign law 'solely' governs the questions of defect and its effect – there is room for English law in the exercise.

Thus, it was concluded that in this case, the court was not bound by those authorities.

How far does foreign law go?
The court found that the relevance of foreign law ends once the validity question has been determined – then English law steps in. A clear distinction was drawn by the court between the determination of the validity of a marriage and the remedies available.

The court relied on Mr Justice Coleridge's decision in Burns v Burns, in which a couple who married on a hot air balloon in California had not obtained a marriage license and thus failed to create a legally valid marriage in California. In that case, the English court found that the marriage was nonetheless void rather than a 'non-marriage'. The principle there was:

"Once the foreign law has determined whether it is or is not a valid marriage, it is for the lex fori to decide its implications and what remedies are available to the petitioner." (Burns, para.45)

Thus, whilst the court accepted that it cannot alter the foreign law's assessment of the marriage's 'validity' it found that it is not bound by the lex loci's categorisations, or the associated implications (i.e. remedies), of the said invalidity.

Similarly, the fact that the foreign law in this case (and in Burns) did not have the same, or indeed any, concepts of void or non-marriage, appears to have played to the Petitioner's advantage: English law could step into the vacuum and determine the remedy.
Indeed, in this case, the court, relying on Burns found:

"If the foreign law has the same or sufficiently similar concepts and classification to English law then it might be expected that De Reneville will provide the answer. But, in any event, and particularly when the foreign law does not have similar concepts, in my view the English court must determine the effect of the foreign law by reference to English law concepts. This is addressed in De Reneville itself but is also required because it is for English law to decide whether the nature and effect of the defect are such as to entitle the petitioner to a decree of nullity or to some other remedy or to no remedy at all." (para. 87)
(Emphasis writer's own) 

Wider implications
Similar in principle to Part III cases?
This case appears to make non-marriage cases, where the marriage is contracted abroad, in some respects akin, in principle, to Part III of the Matrimonial Proceedings Act 1984 applications.

Under both the principles of Part III and this 'non-marriage' case, the determination of a party's status is decided abroad or by reference to foreign law, but the consequential remedy is decided by reference to English law principles – even if the foreign law does not have financial remedies and/or does not have the same categorisations and sub-categorisations as English law when it comes to determining the status of a marriage.

Needless to say, jurisdiction is established entirely differently.

Less difficult to establish a void rather than non-marriage?
(a) Where the ceremony took place in a jurisdiction with less stringent formal requirements for affecting a valid marriage…
One of the further possible implications of this case is that parties who attempt to marry in a jurisdiction with a more nascent legal system, or with less stringent legal requirements for effecting a lawful marriage, might find themselves at a distinct advantage compared to those marrying (or so they believe and intend) in this jurisdiction or in one with similarly rigorous statutory requirements when it comes to the determination of whether their ceremony is a void or non-marriage.

By way of illustration, Dukali v Lamrani, Sharbatly v Shagroon, El Gamal v El Maktoum, and Al-Saedy v Musawi were all cases where the ceremony took place in England and therefore English law applied to determination of the formal validity of the marriage by reference to the strict requirements of the Marriage Act 1949.

Those cases concerned Islamic marriages and one of the major stumbling blocks in all of those cases were that the venue in which the ceremony took place and/or the officiator(s) did not have a marriage licence. Thus it was deemed that those particular defects constituted a wholesale failure (and lack of attempt) to comply with the Marriage Act 1949 consequently making the ceremony one incapable of falling within its scope. The result was that they were deemed to be 'non-marriages'.

There are of course other requirements to effect a formal marriage in this jurisdiction, but the venue and presence of licensed authorities appear to be the most significant in 'non-marriage' cases to date (this is underscored by the outcome in MA v JA for example). 1

The upshot of this is that if an invalid marriage was conducted in a country where the venue and officiator need not have a specific marriage licence (or where the requirements for creating a valid marriage are very few), it would be easier for the English court to categorise, as it did here, that marriage as a void marriage rather than 'non-marriage' as there are less key formalities (from the English perspective) to fall foul of.

Indeed, in many middle-eastern countries, there are no requirements for the marriage to take place at a licensed venue and in fact, many valid marriages traditionally take place in private dwellings (this may also explain why so many non-marriage cases in this jurisdiction concern members of our Islamic community getting married in unlicensed venues or before unlicensed authorities).  2

By way of further illustration of the importance of the legal system in which the marriage was conducted, the court in Hudson v Leigh, concerning a Christian ceremony (found to be a blessing rather than a marriage) in South Africa was deemed to be a 'non-marriage'. In that case however, the ceremony failed at the first hurdle because the court found that the parties had never intended or believed it to be a legal marriage. Therefore the parties' failure to meet the legal formalities was only a secondary consideration.

Nonetheless, it is quite instructive that the court in that case considered that one of the factors which weighed towards 'non-marriage' was the ceremony's failure to meet the rigorous requirements of the South African Marriage Act 1961 (analogous to but different from the Marriage Act 1949), which meant that even if the parties had intended the marriage to be legally valid, the number of failures to comply with the relevant formalities made it likely that the ceremony would have amounted to 'compound non-compliance' (as in the majority of the UK based Islamic marriage cases above) thus making it a 'non-marriage' in any event.

Whilst the judgment in Asaad v Kurter did not specifically deal with what the all the other necessary formalities are, the conclusion (whether by reference to that case or not), follows.

(b) If the ceremony took place in a jurisdiction with no equivalent concepts of void or 'non-marriage'?
Asaad v Kurter also takes the distinction between marriages celebrated in this or similar jurisdictions, and abroad even further (albeit by restating the principles outlined in Burns).

The case provides further authority for the proposition that even where the foreign country in which the marriage was celebrated deems the marriage to be invalid and incapable of having any legal effect or of attracting any financial remedies, then a court in this jurisdiction has the power to decide for itself, by reference to English law concepts, whether the marriage is of the void or 'non-marriage' kind – as happened in this case.

The court based the outcome on the fact that Syria did not have its own or similar categorisations of an invalid marriage as this jurisdiction (as in Burns), and as such, it was up to the English court to categorise the nature of the invalidity and remedy:

"the English court 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; if the foreign law does not, then it is for the English court to decide which English law concept applies" (para 97)

Though it cannot be said that the above is of particular importance as the court found that:

"in any event, it is for the English court to decide what remedy under English law, if any, is available for the reasons set out in Burns v Burns para. 49" (para.97).

Conclusion
It is too soon to tell whether this case represents a new tide (in the face of seven cases decided the other way) and specifically in circumstances where 'non-marriage' cases turn as heavily on findings of fact (not least because of the test put forward by Hudson v Leigh which requires the court to assess what the parties believed and intended), as they do both on the relevant statutes, case law, and possibly foreign law expert evidence.

That said, Asaad v Kurter, does provide a route to a more just outcome in certain 'non-marriage cases' (those contracted abroad) even if the outcome of the case underscores the enduring difficulties faced by Petitioners in similar cases but where the questionable ceremony was conducted in this jurisdiction.


_____________________

1 See Rebecca Probert's "The evolving concept of 'non-marriage" (2013) in Child & Family Law Quarterly 314 - 335

2 See Valentine Le Grice QC of 1 Hare Court's 'A critique of non-marriage' in Family Law Journal, October [2013],Dr Ruth Gaffney-Rhys, a reader in Law at the Newport Business School's 'Am I married? Three recent case studies on the effect of non-compliant marriage ceremonies' in International family Law Journal, March [2013],  and Fiona Read of Russell-Cooke LLP's 'Resolution International Committee: Non-recognition of Islamic marriages in England and Wales' in International Family Law Journal, November [2012] for interesting perspectives on this.