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Hayatleh v Mofdy [2017] EWCA Civ 70

The Court of Appeal’s judgment in relation to the validity of a Syrian marriage; displacing the presumption of marriage.

The Court of Appeal (McFarlane LJ, Underhill LJ and Briggs LJ) heard the husband's appeal from HHJ Tolson QC's decision that a Syrian marriage was valid and that it was open to the parties to pursue divorce proceedings in the United Kingdom. McFarlane LJ dismissed the appeal; Briggs LJ and Underhill LJ agreed.

A religious marriage took place in Syria in February 1999 between the wife and the husband. The husband was not present. The husband's brother acted as his proxy. This was sufficient for the religious purposes of the marriage. The parties and the judge accepted that the marriage ceremony was intended as a "binding and valid ceremony according to Syrian law". This was confirmed by the Third Religious Court in Homs.

The husband wrote to his MP in an effort to secure the wife's entry into the UK, stating that the husband and wife were "genuinely a couple, already married according to both Islamic and Syrian laws". The wife secured entry and became a British citizen by naturalisation in 2003. The husband celebrated the wife's arrival in the UK with a party for their friends. The husband and wife then lived together for a decade until their relationship ceased and the husband petitioned for divorce. There were two conflicting local Syrian records as to whether the husband and wife were married or not.

The validity of the marriage is determined by the law of the place where it was celebrated, even where that location is not governed by the law of the domicile of the parties. As the marriage was Syrian, Syrian law would determine its validity.

An expert in Syrian law produced three reports. There was a conflict in the reports and the expert was called to give evidence. The issue for determination was whether the ceremony of marriage was converted by a civil registration into a binding civil marriage.

HHJ Tolson QC reached his decision on the basis of the balance of probabilities. The judge found that the two conflicting local records balanced each other out and relied on the presumption of marriage to reach his decision that the marriage was valid. 

The husband appealed on the grounds that:

i)  the judge was required to make a finding of fact as to whether the marriage was registered;
ii) there was an absence of evidence, so the judge was wrong to so find that there was a valid marriage;
iii) the judge was wrong to place weight in the husband's letters when under Syrian law, there could be no valid civil marriage in the absence of the birth of a child;
iv) the presumption is rebuttable and the inadequate quality of the documents rebutted the presumption;
v) the wife was ordered to produce documents but then failed to produce them, the adverse inference generated was sufficient to rebut the presumption;
vi) the judge was influenced by the concept of estoppel; he was wrong to be so;
vii) the judge erred in applying the presumption, the presumption only applies where there is a valid ceremony, this matter concerned a valid registration;
viii) new evidence indicated that the wife had made contact with the expert, bringing into question her good faith and credibility.

The wife's case was that:

i) HHJ Tolson QC should have found that Syrian law did not require civil registration in order for a marriage to be valid;
ii) the expert's original opinion was clear and latterly became confused because of the husband's questions but the central effect of the evidence was clear: a religious marriage ceremony is recognised by the relevant court as a valid marriage from the time of its inception.
iii) even if registration was required, the evidence firmly pointed to registration;
iv) the judge's determination, based on the presumption, is a finding of fact. The husband therefore has a steep mountain to climb to appeal that finding.

McFarlane LJ considered the law surrounding the presumption of marriage and set out the applicable law at paragraph 27 drawing attention to the cases of Mahadervan v Mahadervan [1964] P. 233, Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460 and Chief Adjudication Officer v Bath [2000] 1 FLR 8. The judge considered that the cases on the presumption of marriage are clear in identifying the underlying policy in favour of holding to the validity of a 'marriage' which has been evidenced by co-habitation as a married couple for a substantial period of years and that the presumption cases are concerned with looking at "everything", on the facts of each case, that needs to take place to achieve a valid marriage. In reviewing the case law McFarlane LJ identified a trend in requiring an enhanced degree of evidential solidity on the balance of probability, as opposed to a very high standard of proof (beyond reasonable doubt), before the presumption could be displaced. The burden was on the husband to show this.

In terms of the evidence to support the presumption, McFarlane LJ considered that the judge was correct to place weight on the parties' 14 years of cohabitation and their behaviour and gave particular weight to the fact that it was the husband who had petitioned, undermining his case that there was not a valid marriage. McFarlane LJ stated "there could hardly be clearer proof that the husband, even at the end, regarded this as a valid marriage". The judge then highlighted that each of the necessary substantive elements required for a valid Syrian marriage existed.

McFarlane LJ considered whether the conflicting local records did indeed cancel each other out and whether HHJ Tolson QC was correct to so find and whether an adverse inference in relation to the production of the record of marriage was enough to rebut the presumption of marriage. McFarlane LJ considered that the onus was on the husband to produce clear, positive or compelling evidence to rebut the presumption and that the wife's failure to produce a document was not a positive act, this being a negative, it could not therefore rebut the presumption.

McFarlane LJ considered the new evidence that the wife had had contact with the expert but considered that even taking this alongside an adverse inference, this would not be enough to overcome the presumption of marriage. McFarlane LJ did not consider that the judge erred in law by referring to estoppel.

McFarlane LJ therefore did not grant the appeal and as such did not consider it necessary to consider the alternative argument raised by the wife on the issue of whether registration is actually required as a matter of Syrian law.

He concluded stating "it is not possible to criticise the judge … in circumstances where the evidential burden under the presumption was on the husband that should have been the end of the case… it is not only impossible to hold that the judge was wrong on his finding, in my view, on the evidence, it was the only finding which was open to him".

Summary by Joshua Viney, barrister, 1 Hare Court
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