K v A

A foreign marriage may be recognised in England where its local formalities were satisfied and the evidence does not clearly establish an incapacity or status-based invalidity under the foreign law. A marriage ceremony followed by consummation, cohabitation and reputation gives rise to a strong presumption of marriage. That presumption may survive conflicting, provisional expert evidence where the foreign law is unsettled and the evidence does not establish invalidity with sufficient certainty. The court may then grant a declaration under the Family Law Act 1986.

The petitioner sought a declaration that her 2005 Nikah marriage in Lahore to the respondent was valid at inception and subsisted when divorce proceedings were issued. The petitioner was a Sunni Muslim and the respondent was an Ahmahdi. The issue arose during related proceedings concerning their children and was transferred to the Family Division as a preliminary issue.

The expert evidence indicated that the marriage complied with local Ahmahdi formalities, but that Pakistani Islamic law might treat a marriage between a Muslim woman and a non-Muslim man as void. The central question was whether the evidence established that the marriage was invalid under Pakistani law, despite the ceremony, registration, cohabitation, family reputation and the absence of any previous challenge.

1. The preliminary issue was determined in the petitioner’s favour. The court treated the matter as a formal application under section 55(1) of the Family Law Act 1986 and declared that the marriage celebrated in Lahore on 21 September 2005 was valid at inception and subsisted on 18 March 2013.
2. The decisive issue was capacity or status rather than local form. The Nikah form was complete, authenticated and subsequently registered. The ceremony therefore satisfied local formalities, subject to any established incapacity.
3. The court accepted that Pakistani law was unsettled. Professor Lau’s provisional view was that Pakistani courts might regard the marriage as void ab initio under Islamic law, but he also identified no binding authority resolving the conflict between Muslim personal law and Ahmahdi custom. His evidence was insufficient to establish with sufficient certainty that the marriage would not be recognised in Pakistan.
4. There was a strong presumption of marriage arising from the ceremony, immediate consummation, settled cohabitation, reputation and the birth of two children. Neither party, their families nor the wider community had challenged the marriage before the issue arose in the children proceedings. The presumption was not rebutted by clear evidence to the contrary.
5. R v M [2011] EWHC 2132 (Fam) supported recognition of an Ahmahdi marriage complying with local custom, but was distinguishable because it concerned a marriage between two Ahmahdis rather than an inter-faith marriage. The court did not need to decide the wider arguments based on discrimination, public policy or unconscionability.