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University professor’s challenge to the validity of his 16 year marriage fails

Court of Appeal applies ‘presumption of marriage’ to Syrian couple’s relationship

The Court of Appeal has dismissed a hard-fought challenge to the validity of a marriage celebrated in Homs, Syria, in 1999.

In Hayatleh v Mofdy [2017] EWCA Civ 70 Reem Mofdy, represented by Anne-Marie Hutchinson OBE QC (Hon) of Dawson Cornwell, Tim Scott QC of 29 Bedford Row and William Tyzack of Queen Elizabeth Building, satisfied the court that their marriage was entitled to full recognition in England. After waiting over three years Ms Mofdy, who suffers from Multiple Sclerosis and who has not been receiving any financial support from her husband, is now able to obtain a decree of divorce and seek provision from her husband.

Following the marriage Ms Mofdy had joined her husband in the UK, Professor Hayatleh having written to his MP to assist his wife in being granted permission to enter the UK.  They had a daughter in 2000 and lived as a married couple until their relationship broke down in 2013.  Professor Hayetleh first petitioned for divorce, but when a district judge noticed a potential irregularity in the paperwork, he sought to challenge the validity of the marriage. 

At a hearing in Oxford in 2015, His Honour Judge Tolson QC rejected Professor Hayetleh's challenge, the judge noting that documentary evidence of the marriage may not have been available because of bomb destruction of the Homs courthouse.  Professor Hayetleh nonetheless pursued his case to the Court of Appeal, delaying the wife's ability to seek financial provision.

Relying on the so-called 'presumption of marriage' that exists where there may be questions around the formalities or paperwork of a marriage but where the parties have lived together so as to obtain the reputation as husband and wife, Lord Justice McFarlane ruled as follows:

"Contrary to the husband's case, I consider that the judge's approach to the factual issue before him was entirely in accord with that described in the authorities to which I have referred. The background facts justified, as a matter of policy, a presumption that this couple were indeed validly married. The husband had asserted the existence of the marriage from beginning to end; he had even asserted its validity in his own divorce petition. Against that background, clear, positive or compelling evidence was required, but it simply was not there… Contrary to the husband's case on appeal, it is not only impossible to hold that the judge was wrong in his finding, in my view, on the evidence, it was the only finding which was open to him."

Ms Hutchinson commented:

"The challenge to the validity of the marriage … created a long period of limbo and uncertainty for the client, but most important for her was to have confirmation, for cultural and religious reasons, of her status as the wife she always believed herself to be."

For a pdf of the judgment, click here.

15/2/17