A Local Authority v X & Anor (Children)

A marriage involving a party domiciled in England and Wales is subject to the English statutory minimum-age rules, even if celebrated abroad and valid under the law of the place of celebration. A marriage entered into when either party is under 16 is void under the Marriage Act 1949 and the Matrimonial Causes Act 1973. The inherent jurisdiction cannot be used to circumvent the statutory procedure for obtaining a decree of nullity or the absolute prohibition in the Family Law Act 1986 against declaring that a marriage was void at inception. A declaration may be appropriate where statute leaves a genuine gap, but not where nullity remains available.

The local authority was conducting care proceedings concerning a mother who was herself a child and her baby. It issued a separate application seeking permission to invoke the inherent jurisdiction and obtain a declaration that the mother’s marriage, contracted in Pakistan when she was 14, was not recognised in England and Wales.

The marriage was assumed to be formally valid under Pakistani law. The court nevertheless concluded that the mother was domiciled in England and Wales and that the marriage was void under English law because she was under 16. It also determined, for the care and placement proceedings, that the baby’s father lacked parental responsibility. The central issue was whether the court could make the wider declaration sought despite the statutory scheme.

1. Application refused. The local authority withdrew its application after the judge indicated that he would not make the requested declaration.
2. The mother’s domicile of origin, and her domicile at the date of marriage, was England and Wales. Under section 2 of the Marriage Act 1949 and section 11 of the Matrimonial Causes Act 1973, a marriage is void where either party is under 16. The rule has extra-territorial effect: Pugh v Pugh [1951] P 482 established that the place of celebration and the other party’s capacity under foreign law do not alter the result where one party is domiciled here.
3. Duress and lack of capacity ordinarily make a marriage voidable under section 12 of the Matrimonial Causes Act 1973. Here, however, the marriage was void because of the mother’s age. She could therefore petition for nullity, and there was no statutory gap requiring the intervention of the inherent jurisdiction.
4. B v I (Forced Marriage) [2010] 1 FLR 1721 was distinguishable. That case concerned a voidable marriage where the statutory time bar had made nullity unavailable. In the present case, nullity remained an available remedy.
5. Section 58(5) of the Family Law Act 1986 absolutely prohibited any court from declaring, whether under that Part or otherwise, that a marriage was void at inception. Describing the relief as a declaration that the marriage was incapable of recognition would impermissibly bypass that prohibition. The wider declaration was therefore refused.
6. For the care and placement proceedings only, the court found that the marriage was void and that the father did not have parental responsibility. The father retained the rights of a putative or non-marital father.

This was a first-instance decision of the High Court (Family Division). The judgment records an earlier directions hearing in June 2013, at which the court had invited the mother to consider presenting a nullity petition.