MM v NA (Declaration as to Marital Status)

A marriage validly celebrated under the law of an unrecognised territory may nevertheless receive recognition in England and Wales where recognition concerns private or family rights, accords with justice, common sense and the needs of law and order, and does not conflict with UK foreign policy or public policy.

The non-recognition and “one voice” doctrines do not require the courts to disregard every legal act of an unrecognised authority. Marriage is a private legal status regulating the day-to-day affairs of individuals and falls within the recognised exception. The court must consider the executive’s position, particularly any evidence from the Foreign and Commonwealth Office.

The applicant and respondent, both of Somali origin, underwent a religious marriage ceremony in Hargeisa, Somaliland, followed by registration at the local district court and the issue of a marriage certificate. They subsequently lived together in England and Wales as husband and wife and had a child.

They jointly sought a declaration under section 55 of the Family Law Act 1986 because Somaliland was not recognised by the United Kingdom as a sovereign State. The court had to determine whether the parties were validly married under Somaliland law and, if so, whether that marriage was entitled to recognition in England and Wales.

1. The court found that the parties were validly married under Somaliland law. The marriage contract and religious ceremony satisfied the applicable Sharia formalities, and the subsequent district-court certificate provided formal evidence of validity. The marriage was valid from the date of the marriage contract, rather than only from the date of registration.

2. Ordinarily, a marriage valid under the law of the place of celebration is recognised under English law. The non-recognition of Somaliland engaged the “one voice” doctrine, under which the courts must not act inconsistently with the foreign policy or diplomatic stance of the UK Government.

3. That doctrine is subject to an exception for private and family rights. The exception may be described as the doctrine of necessity or implied mandate. It extends to private rights, acts of everyday occurrence, routine administration and day-to-day activities having legal consequences, provided recognition is consistent with justice, common sense, law and order, and does not conflict with public policy or the sovereign’s interests.

4. Marriage falls within that exception. Recognition of the marriage did not amount to recognition of Somaliland as a State or its government. The court was assisted by the Foreign and Commonwealth Office’s evidence that recognition of a Somaliland marriage would be unlikely to imply greater political engagement and would not attract objection on foreign-policy grounds.

5. The court distinguished the constitutional circumstances considered in Adams v Adams. The United Kingdom Government had not reserved to itself control over which legal acts Somaliland authorities could perform, and the case concerned private family rights rather than acts contrary to specific United Kingdom legislation.

6. The court granted the declaration. The parties were validly married, their marriage was valid and subsisting when the application was made, and it was entitled to formal recognition under the law of England and Wales.

7. The discussion of Convention rights was expressly obiter. The court considered that Articles 8 and 12 might be engaged by refusal of recognition, but concluded that the applicants would have had a straightforward opportunity to marry in England and Wales, making any disproportionate interference difficult to establish.