Hayatleh v Modfy

Where parties have cohabited and conducted themselves as spouses for a substantial period, English law may presume that all matters necessary to establish a valid marriage have occurred, including later formalities required by the law governing the marriage. The presumption is strong and may be displaced only by clear, positive or compelling evidence, assessed on the facts of the case. Conflicting administrative records, a party’s failure to produce a document, and an adverse inference will not necessarily suffice. The court must consider the parties’ conduct and how they regarded themselves, as well as the documentary evidence. A judge who considers estoppel but decides the case by applying the presumption does not thereby err in law.

The parties underwent a religious marriage ceremony in Syria in 1999, with the husband represented by proxy. A Syrian religious court confirmed the marriage but made civil registration conditional on production of a military-service permit or the birth of a child. The parties thereafter lived in England as husband and wife for about 14 years and had a child.

When divorce proceedings were issued in England, the Oxford Family Court, on 27 May 2015, held that the marriage had been validly registered in Syria and that the parties could pursue divorce proceedings in the United Kingdom. The husband appealed, challenging the factual finding and the use of the presumption of marriage by cohabitation and reputation. The central issue was whether the evidence rebutted that presumption in relation to the Syrian registration requirement.

1. Appeal dismissed. The Court of Appeal upheld the finding that the marriage was validly registered in Syria.
2. The validity of a marriage celebrated abroad is determined by the lex loci celebrationis, but factual issues are determined by applying English domestic law. The presumption of marriage by cohabitation and reputation was therefore relevant to whether the requirements for a valid Syrian marriage had been fulfilled.
3. The parties’ 14 years of cohabitation, their consistent conduct as a married couple, and the husband’s repeated assertions of the marriage, including in his divorce petition, engaged and strongly supported the presumption. The presumption is not confined to the ceremony itself. It may extend to subsequent matters necessary under the applicable foreign law to achieve a valid marriage.
4. The evidence required to rebut the presumption is clear, positive or compelling, assessed in the circumstances of the particular case. The very high standard of proof identified in Mahadervan v Mahadervan was not followed by the more recent authorities, but the strong policy favouring the preservation of an apparent long-standing marriage reinforced the presumption’s strength.
5. The conflicting Syrian family-card records did not provide positive evidence in either direction. The wife’s failure to produce a registration document could at most support an adverse inference; it did not prove that the document did not exist and fell well short of clear, positive or compelling evidence. The untested fresh evidence concerning contact with the expert was likewise insufficient.
6. The trial judge considered estoppel but did not decide the case by relying on it. He was entitled to decide the issue through the presumption of marriage. The alternative argument that Syrian law did not require registration was unnecessary to determine the appeal.

• Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Oxford Family Court’s finding that the Syrian marriage was validly registered and that divorce proceedings could proceed in the United Kingdom.
• Oxford Family Court: HHJ Tolson QC, on 27 May 2015, held that the marriage was valid and that the parties could pursue divorce proceedings in the United Kingdom.