NB v MI

Capacity to marry requires only a broad understanding that marriage creates a recognised union carrying mutual expectations of society, comfort and assistance. The test is status-specific, not spouse-specific, and the wisdom of the marriage is irrelevant.

Capacity to marry and capacity to choose sexual relations are legally distinct. Sexual relations, cohabitation, procreation and detailed knowledge of financial consequences are not essential components of marital capacity.

The statutory regime governing marital declarations is comprehensive. The inherent jurisdiction cannot be used to circumvent the prohibition on declaring a marriage void at inception. Any exceptional public-policy power to refuse recognition of a foreign marriage must be exercised very narrowly.

The applicant sought a declaration that a marriage celebrated in Pakistan under sharia law was not recognised in England and Wales. She also petitioned for nullity, alleging that she lacked capacity to consent to marriage in June 2013.

The respondent did not participate. The applicant relied on expert evidence concerning the effects of a catastrophic brain injury sustained in childhood. The court considered whether she had capacity to marry, whether the foreign marriage should be denied recognition under the inherent jurisdiction, and whether time should be extended under Matrimonial Causes Act 1973, s 13(4), for the nullity petition.

1. Capacity to marry. The court adopted the simple contractual conception in Durham v Durham [1885] 10 PD 80, refined by later authority. The irreducible requirement was an understanding, in broad terms, that marriage conferred the status of a recognised union giving rise to expectations of sharing society, comfort and assistance.
2. The test was status-specific rather than spouse-specific. Capacity to marry and capacity to choose sexual relations were legally distinct, although they commonly operated at an equivalent level. Capacity for sexual relations was not an absolute precondition to capacity to marry.
3. Detailed understanding of financial consequences, financial-remedy law, a spouse’s proposed residence or work, cohabitation, sexual relations and procreation was unnecessary. The wisdom of the marriage was irrelevant. On the evidence, the applicant understood the broad nature of marriage and had capacity to consent on 1 June 2013. The Pakistani marriage was therefore valid and entitled to recognition.
4. Declaration under the inherent jurisdiction. Alternatively, the application would have been refused. Sections 55 and 58 of the Family Law Act 1986 formed a complete statutory code. Section 58(5)(a) prohibited a declaration that a marriage was void at inception, and ss 58(4) and (5) prevented the inherent jurisdiction from being used to evade that prohibition. The prohibition applied even where nullity proceedings were unavailable or out of time.
5. A general public-policy power to refuse recognition of an unconscionable foreign legal relationship was not denied, but its exercise in this context had to be highly exceptional. The facts did not meet that stringent threshold. The court disapproved approaches which treated a declaration of non-recognition as a permissible substitute for nullity proceedings.
6. A declaration that a ceremony was a genuine marriage ceremony rather than a charade or non-marriage remained outside the statutory code and could be sought under the inherent jurisdiction.
7. Extension of time. The applicant failed to establish that she had suffered from mental disorder within the meaning of s 1(2) of the Mental Health Act 1983 during the relevant three-year period. Capacity under the Mental Capacity Act 2005 and mental disorder under the 1983 Act described different concepts. Leave under s 13(4) of the Matrimonial Causes Act 1973 was therefore unavailable.
8. The application and nullity petition were dismissed. Under s 16 of the Matrimonial Causes Act 1973, a voidable marriage would in any event be treated as valid until annulled. The applicant’s remedy was divorce.