Introduction

The case of SA, Re (Declaration of Non-Recognition of Marriage) ([2023] EWCA Civ 1003) adjudicated by the England and Wales Court of Appeal (Civil Division) on August 30, 2023, addresses the critical issue of the court's inherent jurisdiction to declare a marriage non-recognised. The marriage in question, conducted in Bangladesh on October 25, 2019, between SA, a UK domiciled individual with significant intellectual impairments, and NU, a Bangladeshi national, is scrutinised under the lens of forced marriage and capacity to consent. This commentary explores the nuances of the court's decision, its alignment with existing legal frameworks, and its implications for future jurisprudence.

Summary of the Judgment

The Court of Appeal upheld the decision of Newton J, who declared that the marriage between SA and NU is not recognized as valid in England and Wales. The key factors influencing this decision include SA's lack of capacity to consent to marriage or engage in sexual relations, and the evident coercion leading to the forced marriage. Despite challenges from SA's mother, who contended that the court overstepped by invoking inherent jurisdiction amidst existing statutory provisions under the Family Law Act 1986 (FLA 1986), the appellate court affirmed the lower court's stance. The appeal was dismissed, reinforcing the court's ability to utilize inherent jurisdiction in safeguarding vulnerable individuals from forced marriages, even when statutory remedies appear available.

Analysis

Precedents Cited

The judgment extensively analyzed several precedents influencing the court's decision:

• Westminster City Council v C and Others [2009] Fam 11: Established that the inherent jurisdiction allows courts to declare non-recognition of a marriage based on public policy grounds.
• Cheni v Cheni [1965] P 85: Highlighted the necessity of public policy considerations in recognizing foreign marriages.
• Re RS (An Adult) [2017] 4 WLR 61: Emphasized that marriages lacking capacity are typically not recognized, aligning with public policy against forced marriages.
• NB v MI (Capacity to Contract Marriage) [2021] 2 FLR 786: Presented obiter remarks questioning the extent of inherent jurisdiction, which were addressed and refuted in the present case.
• Kassim v Kassim [1962] P. 224 and Corbett v Corbett [1971] P 83: Provided foundational understanding of the distinction between void and voidable marriages.

These precedents collectively underscored the court's discretion to intervene in marriages that contravene English public policy, particularly when coercion and lack of consent are evident.

Legal Reasoning

The court's legal reasoning rested on several pillars:

• Distinction Between Void and Voidable Marriages: The court reaffirmed the distinction, clarifying that voidable marriages, unlike void marriages, are initially considered valid until annulled. However, the inherent jurisdiction allows for their non-recognition based on capacity and coercion.
• Inherent Jurisdiction vs. Statutory Provisions: Despite the FLA 1986's specific provisions limiting declarations to certain circumstances, the court determined that these did not preclude the use of inherent jurisdiction in cases of forced marriages lacking consent.
• Public Policy Considerations: The court maintained that protecting individuals from forced marriages aligns with overarching public policy, thus justifying the non-recognition declaration.
• Capacity to Consent: SA's significant intellectual impairments and inability to freely consent were pivotal in determining the marriage's non-recognition.

The court meticulously dissected the statutory language, legislative intent, and practical implications, concluding that the declaration did not bypass statutory requirements but complemented them in safeguarding vulnerable individuals.

Impact

This judgment has profound implications:

• Clarification of Inherent Jurisdiction: It reinforces the court's authority to utilize inherent jurisdiction in situations where statutory remedies may be insufficient or inapplicable.
• Protection Against Forced Marriages: Establishes a strong judicial stance against forced marriages, especially involving individuals who lack the capacity to consent.
• Guidance for Future Cases: Provides a clear framework for courts to assess the recognition of foreign marriages against public policy, emphasizing the primacy of consent and capacity.
• Legislative Considerations: May prompt legislative bodies to revisit and potentially refine statutory provisions to address gaps highlighted by the use of inherent jurisdiction.

Overall, the decision fortifies the legal mechanisms available to protect individuals from being compelled into marriages against their will or capacity, aligning with modern human rights standards.

Complex Concepts Simplified

Several nuanced legal concepts underpin this judgment. Here's a breakdown to enhance understanding:

• Inherent Jurisdiction: A court's general power to manage its own affairs and provide remedies not explicitly outlined in statutes, ensuring justice is served even in unprecedented scenarios.
• Void vs. Voidable Marriage:
  • Void Marriage: Considered never to have legally existed. Examples include marriages within prohibited degrees of relationship.
  • Voidable Marriage: Initially recognized as valid but can be annulled by a court. Typically involves issues like lack of consent or capacity.
• Public Policy: Fundamental principles that govern societal norms and ethics, guiding courts to uphold societal interests over individual agreements that contravene these principles.
• Family Law Act 1986 (FLA 1986): Legislation providing courts with specific powers regarding family matters, including the declaration of marital status and conditions under which it can be altered.
• Forced Marriage: A marriage conducted without the free consent of one or more parties, often involving coercion or manipulation.

Understanding these concepts is crucial for comprehending the court's authority and the protections it extends to vulnerable individuals within the legal system.

Conclusion

The Court of Appeal's decision in SA, Re (Declaration of Non-Recognition of Marriage) ([2023] EWCA Civ 1003) serves as a pivotal affirmation of the judiciary's role in upholding public policy and protecting individuals from coerced marriages. By validating the use of inherent jurisdiction to declare a marriage non-recognised, the court has reinforced the legal safeguards against forced marriages, particularly those involving parties lacking the capacity to consent. This judgment not only clarifies the interplay between statutory provisions and inherent jurisdiction but also sets a robust precedent for future cases, ensuring that personal autonomy and consent remain paramount in the sanctity of marriage.

Moreover, the dismissal of the appeal underscores the judiciary's commitment to adapting and interpreting the law in ways that respond to evolving societal norms and human rights considerations. As legislatures and legal practitioners reflect on this decision, it is anticipated that further refinements in family law may emerge to bridge any remaining gaps between statutory frameworks and inherent judicial powers, fostering a more just and equitable legal environment.