KC & Anor v City of Westminster Social & Community Services Dept. & Anor

A foreign marriage involving a person domiciled in England who lacks capacity to marry may be refused recognition in English law. Capacity is generally governed by each party’s ante-nuptial domicile. Recognition may also depend on the intended matrimonial home, the country of the marriage’s most real and substantial connection, and English public policy.

The treatment of a marriage as voidable under Matrimonial Causes Act 1973 does not compel recognition of a foreign marriage. The court may refuse recognition where the absence of capacity strikes at the root of marriage and recognition would offend the conscience of the English court. The protective inherent jurisdiction over incapable adults survives and operates alongside the Mental Capacity Act 2005.

IC was an adult with severe intellectual impairment and autism. He lacked capacity to marry, consent to sexual relations or conduct litigation. His parents arranged a Muslim marriage by telephone between IC in England and NK in Bangladesh. The marriage was accepted below as valid under Sharia law and Bangladeshi civil law.

Roderic Wood J declared that the marriage was not valid under English law. He also continued protective proceedings concerning IC’s welfare and possible removal to Bangladesh. IC’s parents appealed against the declaration and challenged the court’s protective jurisdiction.

The principal issues were whether the marriage should be recognised in England, whether its voidable status under section 12(c) of the Matrimonial Causes Act 1973 required recognition, and whether the High Court retained jurisdiction to control IC’s residence and removal from the jurisdiction.

1. Disposition. Permission to appeal was granted on the recognition issue. The order was varied by substituting a declaration that the marriage, although valid under Bangladeshi law, was not recognised as a valid marriage in this jurisdiction. Permission to appeal on the challenges to the protective jurisdiction and its prospective exercise was refused. Thorpe LJ and Wall LJ agreed on the substituted declaration, and Hallett LJ agreed with both judgments.

2. The High Court’s inherent jurisdiction to protect incapable adults survived the commencement of the Mental Capacity Act 2005. It operated alongside the statutory powers, subject to the statutory scheme. Sections 15–17, particularly section 17(1)(a), empowered the court to decide where an incapable person should live and to prevent removal abroad where necessary for that person’s health and welfare. The jurisdiction had to be exercised lawfully, necessarily, proportionately and with proper caution because of its effect on family life.

3. The case concerned recognition rather than the validity of the marriage under Bangladeshi law. Under the dual domicile rule, capacity to marry was generally governed by the law of each party’s ante-nuptial domicile. IC was domiciled in England and lacked capacity under English law. The marriage was therefore not entitled to recognition: X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) approved.

4. The alternative connecting factors did not produce recognition. They were the law of the intended matrimonial home and the law of the country with which the marriage had its most real and substantial connection. Those questions were assessed at the date of the ceremony. The intention then was that NK would come to England and the married life would be established there. English law therefore governed under either alternative.

5. Sections 12(c) and 16 of the Matrimonial Causes Act 1973 made a marriage entered into without valid consent voidable rather than void. That domestic classification did not require an English court to recognise this foreign marriage. In re Roberts, decd; Roberts v Roberts [1978] 1 WLR 653 concerned the domestic effect of a subsisting voidable English marriage and did not decide the recognition of a foreign marriage.

6. Recognition could also be refused on public policy grounds. IC had no capacity to marry or consent to sexual activity, and the proposed introduction of his wife into his life risked serious harm. The marriage was sufficiently offensive to the conscience of the English court to justify refusal of recognition while applying common sense, good manners and reasonable tolerance.

7. The identification of the place of celebration of a transnational telephone marriage was left open. English law must determine that question in a future case with adequate evidence and argument. The court did not endorse the parties’ agreement that this marriage was celebrated in Bangladesh.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 198, substituted a declaration that the marriage, though valid under Bangladeshi law, was not recognised as a valid marriage in England. Permission to appeal on the protective-jurisdiction grounds was refused.
• High Court (Family Division): Roderic Wood J declared, among other matters, that IC lacked capacity to marry and that the Bangladeshi marriage was not valid under English law. Protective directions remained in place pending determination of IC’s best interests. No neutral citation is stated in the judgment.