Asaad v Kurter

Where an overseas marriage ceremony fails to satisfy formal requirements of the law of the place of celebration, the marriage is invalid for English purposes. The English court must then determine, by reference to English legal concepts, whether the ceremony created a void marriage, a voidable marriage or a non-marriage. Foreign terminology is not conclusive where the foreign law lacks equivalent classifications. The availability and form of any remedy are matters for the English court as the lex fori. A ceremony intended by the parties to be a marriage, capable of conferring marital status if the required formalities were completed, will not ordinarily be treated as a non-marriage merely because those formalities were omitted.

The applicant and respondent participated in a Syriac Orthodox ceremony in Syria on 6 August 2007. They subsequently lived together in England. The applicant sought a divorce, alternatively a decree of nullity. The respondent contended that the ceremony was only a religious blessing and had no legal effect.

The court found that the ceremony was intended and understood by both parties to be a marriage ceremony. Syrian-law requirements concerning permission and registration had not been fulfilled. The central issues were whether the ceremony created a valid marriage under Syrian law and, if not, whether English law treated it as a void marriage or a non-marriage.

1. Nature of ceremony. The ceremony was a marriage ceremony, not merely a blessing. The evidence, including the church register, photographs, the parties’ conduct and the applicant’s spousal visa, established that both parties knew and intended this. The identity of the witnesses did not affect the ceremony’s validity as a Syriac Orthodox ceremony.
2. Validity under Syrian law. Permission from the Syrian Ministry of the Interior and registration were required because the respondent was not Syrian. Those formalities were not completed. Under the law of the place of celebration, the ceremony therefore did not create a valid marriage. The presumption of marriage arising from a ceremony followed by cohabitation was rebutted by clear evidence of the missing formalities.
3. Foreign law and English classification. The formal validity of the marriage was governed by Syrian law. However, where foreign law used terms such as “non-marriage” without equivalent English classifications, the English court had to determine their effect by reference to English concepts. The availability of a decree of nullity and other remedies was for the English court as the lex fori. The court agreed with the approach in Burns v Burns [2008] 1 FLR 813.
4. Application. This was not a non-marriage in English law. The ceremony was capable of conferring marital status if the parties completed the necessary formalities and was not so deficient in the character of marriage as to exclude matrimonial relief. It was therefore a void marriage, notwithstanding its invalidity under Syrian law.
5. Order. The applicant was entitled to a decree of nullity.

First-instance decision. No prior appellate decision is stated in the judgment.