Dukali v Lamrani

A ceremony conducted in England which wholly fails to comply with the English marriage legislation may be a non-marriage, rather than a valid or void marriage. Such a ceremony does not qualify as a “marriage” for Matrimonial and Family Proceedings Act 1984, Pt III, even if it was a valid marriage abroad and the parties intended it to have legal effect. The statutory gateway concerns a marriage which is, or is recognised under English law as, valid or at least void. Where the application fails at that gateway, it is unnecessary to decide how the discretionary power to refuse recognition of a foreign divorce should be exercised.

The applicant and respondent, both Moroccan citizens and dual British nationals, underwent a Moroccan civil ceremony at the Moroccan Consulate in London in 2002. The ceremony complied with Moroccan law but with none of the requirements of the English marriage legislation. The parties later separated. The husband obtained a divorce in Morocco, which made only modest financial provision.

The applicant sought leave under s 13 of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief under Pt III after an overseas divorce. The issues were whether the ceremony constituted a “marriage” for s 12 and, if so, whether the Moroccan divorce was entitled to recognition in England and Wales.

1. Application refused. Leave under s 13 of the Matrimonial and Family Proceedings Act 1984 was refused because the applicant could not demonstrate a marriage to which s 12 applied.
2. The consulate was part of the territory of the receiving State. The ceremony was therefore contracted wholly in England, and its formal validity was governed by English law. Radwan v Radwan [1973] Fam 24 was followed and applied.
3. The ceremony was neither valid nor void under English law. There was manifold non-compliance with the requirements of the Marriage Acts. Section 49 of the Marriage Act 1949, linked to s 11(a)(iii) of the Matrimonial Causes Act 1973, applied only where the parties purported to inter-marry under the statutory scheme. This ceremony did not do so. It was a non-marriage.
4. The presumption of marriage from long cohabitation could not assist. The parties had cohabited for about seven or eight years, which was insufficient on the evidence. In any event, the only known ceremony had been positively shown not to create even a void marriage in English law. The reasoning in Chief Adjudication Officer v Bath [2000] 1 FLR 8 was distinguished, and the approach in Al-Saedy v Musawi [2010] EWHC Fam 3293 was applied.
5. For Pt III, “marriage” meant a marriage valid under English law or recognised by English law as valid or at least void. The fact that the ceremony was valid in Morocco and that the parties intended legal consequences could not enlarge the statutory word. The background described in Agbage v Agbage [2010] UKSC 13 supported that construction.
6. It was unnecessary to decide whether the Moroccan divorce should be recognised. Under s 51(2) of the Family Law Act 1986, non-subsistence of the marriage was a discretionary, not mandatory, ground for refusing recognition.