SA, Re (Declaration of Non-Recognition of Marriage)

Factual and Procedural Background

This appeal concerns the jurisdiction of the court to declare that a marriage is not recognised as valid in England and Wales. The marriage took place in Bangladesh on or around 25 October 2019 between the Plaintiff, domiciled in the UK, and the Defendant, domiciled in Bangladesh. The judge made a declaration on 26 May 2022 that the marriage "is not recognised as valid in this jurisdiction". The Plaintiff is significantly intellectually impaired, lacking capacity to consent to marry or engage in sexual relations, and was found to have been subject to a forced marriage, with a Forced Marriage Protection Order (FMPO) made in respect of the Plaintiff. The Plaintiff acts through a litigation friend, the Official Solicitor. The Plaintiff's mother appeals against the declaration on grounds related to the statutory framework and the inherent jurisdiction of the court.

Legal Issues Presented

1. Whether the court has jurisdiction under its inherent jurisdiction to make a declaration that a foreign marriage, which is voidable under English law, is not recognised as valid in England and Wales.
2. Whether the use of the inherent jurisdiction to make such a declaration bypasses or conflicts with the statutory provisions of sections 55 and 58 of the Family Law Act 1986.
3. Whether such a declaration can only be made on exceptional public policy grounds, and if so, whether the facts of this case meet that threshold.

Arguments of the Parties

Appellant's Arguments (Plaintiff's Mother)

• The court was wrong to make the declaration as the inherent jurisdiction should not circumvent the statutory provisions of the Family Law Act 1986 (FLA 1986), specifically ss. 55 and 58.
• The inherent jurisdiction to make a declaration of non-recognition of marriage should only be used on exceptional public policy grounds, which this case does not meet.
• The statutory remedy for voidable marriages is a nullity petition under s. 12(1)(c) of the Matrimonial Causes Act 1973 (MCA 1973), which remains available and provides procedural safeguards.
• Section 58(5)(a) of the FLA 1986 prohibits declarations that a marriage was void at its inception, with no exceptions, and the declaration made effectively equates to such a prohibited declaration.
• The unchanged statutory provisions indicate Parliament’s continued policy stance, precluding the use of inherent jurisdiction in these circumstances.
• There are no exceptional or egregious features in this case, such as severe violence or high suffering, to justify the declaration.
• Alternative remedies such as nullity or divorce proceedings remain available and should be pursued.

Respondent's Arguments (Plaintiff through Official Solicitor and Local Authority)

• The declaration of non-recognition is consistent with the court’s inherent jurisdiction as established in Westminster City Council v C and Others and subsequent cases.
• The statutory provisions in the FLA 1986 do not expressly prohibit declarations of non-recognition in respect of voidable marriages, only void marriages.
• Forced marriage is strongly opposed in public policy, reflected in both civil and criminal statutes, including lifelong anonymity for victims and criminal sanctions for forced marriage.
• Public policy evolves and the court must have the flexibility to refuse recognition of marriages that are contrary to fundamental public policy, including forced marriages involving persons lacking capacity.
• The threshold for public policy declarations is high but was met in this case due to the Plaintiff’s lack of capacity, intellectual disability, and the forced nature of the marriage.
• The declaration does not equate to a declaration that the marriage was void at inception, thus not conflicting with s. 58(5)(a) of the FLA 1986.
• The remedy of nullity is distinct from a declaration of non-recognition, especially given the legal effect of voidable marriages under s. 16 of the MCA 1973.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that the Plaintiff was subject to a forced marriage and lacked capacity to consent, facts not challenged on appeal. It acknowledged the strong public policy reflected in legislation criminalising forced marriages and providing protective orders. The court considered the statutory framework governing declarations about marital status under the Family Law Act 1986 and the Matrimonial Causes Act 1973.

The court analysed the distinction between void and voidable marriages, emphasising that a voidable marriage is not void at inception but may be annulled by decree from the date of the decree. The court noted that the Family Law Act 1986 prohibits declarations that a marriage was void at inception but does not expressly address voidable marriages or declarations of non-recognition of foreign marriages.

The court examined the Law Commission's 1984 Report, which focused on void marriages and recommended that declarations of initial invalidity be confined to nullity proceedings, but made no substantive reference to voidable marriages. This supported the court’s interpretation that the statutory prohibition on declarations applies only to void marriages.

The court considered the obiter remarks in NB v MI, which questioned the scope of the inherent jurisdiction, but found no statutory or policy basis to extend the 1986 Act’s prohibition to voidable marriages. The court reaffirmed the binding precedent of Westminster City Council v C and Others, which confirmed the court’s power to make declarations of non-recognition of voidable marriages on public policy grounds.

The court distinguished between declaring a marriage void at inception and refusing to recognise a voidable marriage, holding that the latter does not contravene statutory prohibitions. It also rejected the submission that the declaration made was equivalent to a prohibited declaration of voidness.

Regarding the public policy threshold, the court applied the test from Cheni v Cheni and Westminster CC, concluding that the forced marriage of a person lacking capacity to consent is sufficiently offensive to the conscience of the English court to justify refusal of recognition. The court rejected the argument that severe violence or high suffering is required, confirming that the absence of capacity and forced nature of the marriage meet the threshold.

Finally, the court concluded that the declaration made by the judge was consistent with the statutory scheme and public policy, and that the appeal grounds were not made out.

Holding and Implications

The court DISMISSED the appeal.

The holding confirms that the inherent jurisdiction of the court includes the power to make a declaration of non-recognition of a foreign voidable marriage on public policy grounds, particularly in cases involving forced marriage and lack of capacity to consent. The court clarified that such a declaration does not breach the statutory prohibitions in the Family Law Act 1986, which apply only to void marriages, not voidable marriages. This decision affirms the court’s ability to refuse recognition of marriages that are contrary to fundamental public policy, reinforcing protections for vulnerable individuals subject to forced marriages. No new precedent was created beyond confirming the continued authority of Westminster City Council v C and Others.