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Court refuses declaration of non-recognition of forced marriage of 14 year old girl

Declaration barred by section 58(5) of Family Law Act 1986

Mr Justice Holman has dismissed an application, brought by a local authority in the course of care proceedings, for a declaration of non-recognition of the marriage of a British girl, then 14, conducted in Pakistan under circumstances of extreme duress.

In A Local Authority v X & Anor [2013] EWHC 3274 (Fam) the court heard that X, the girl, was born in England in 1997. Her parents had immigrated to England from Pakistan some 40 years earlier. In 2011, aged 14, X travelled with her father and brother to Pakistan where, under considerable duress involving the production of a gun and physical violence upon her, she underwent a ceremony of marriage to a 24 year old man. The marriage was consummated two weeks later and X became pregnant. She returned to England and the baby was born in the autumn of 2012. The local authority commenced care proceedings in relation to X and the baby.

Within the care proceedings the local authority, with the support of X through her Guardian, sought a declaration of non-recognition of the marriage in Pakistan. 

The court found that X was domiciled in England at the time of the marriage and the validity of the marriage was therefore governed by the Marriage Act 1949. Pursuant to that Act which stipulates that a marriage between persons either of whom is under 16 shall be void, the marriage was found to be void.  The case of Pugh v Pugh [1951] P 482 establishing that the statutory provisions as to minimum age are extra-territorial in effect was approved.

Holman J said:

"On the facts as I have recounted them, there is no question but that X herself, who is now approaching the age of seventeen, could present a petition for nullity on the ground that her marriage is void on the ground that at the date of the marriage she was under the age of sixteen."

However, Vanessa Meachin, counsel for X, said that it was too much to expect X, at any rate at her present age and stage in life, herself to take an active step that would be so defiant of her parents and family as herself to petition for a decree that the marriage that they forced her to enter into was void.

Holman J, having regard to s. 58(5) Family Law Act 1986 which places a statutory bar on any court declaring a marriage void at its inception, refused to grant the declaration sought by the local authority.

The court distinguished the case of B v I (Forced Marriage) [2010] 1 FLR 1721 which involved a 16 year old forced into marriage by duress. That marriage was voidable because of the duress but not void. On the facts of the case, Baron J was clear that nullity was not an option as it was statute-barred and therefore the inherent jurisdiction of the court could be invoked to make a declaration – not that the marriage was void at inception but that there was never a marriage capable of recognition in England and Wales. In the present case there was not a bar to obtaining a decree of nullity and the court held that to grant the declaration sought would be flouting the statutory prohibition in s.58 (5).

The full judgment and case summary by Georgina Clark of Field Court Chambers, on which this news item is based, can be read here.

8/11/13