Laila Boughajdim v Akka (Alan) Slimane Hayoukane

A foreign marriage may sustain divorce proceedings where it is valid under the law of the place where it was celebrated or otherwise validly given effect. That principle applies where retrospective foreign legislation validates an initially informal marriage. The absence of a conventional ceremony does not prevent identification of the lex loci celebrationis where the relevant foreign law does not require one. The court must assess formal validity, essential validity and public policy separately. Consent and the mechanism for giving it are matters of form, but any incapacity to consent is governed by the law of domicile. A competent foreign judgment will not ordinarily be reopened for procedural irregularity unless substantial injustice, judged by English standards, is shown. Public policy is a narrow exception requiring a clear and substantially incontestable affront to fundamental justice.

The wife sought to proceed with divorce proceedings in England and Wales on the basis of a marriage recognised by the Moroccan courts in 2013 under Art 16 of the Moroccan Family Code and registered in Morocco. The husband denied that a valid marriage existed, challenged the Moroccan proceedings and argued that English marriage legislation governed formal validity. He also relied on lack of consent, procedural irregularity, alleged fraud and public policy.

The issue came before the High Court as a rehearing after earlier proceedings before HHJ Lord Meston KC, who had recognised the Moroccan marriage. The court considered the effect of the Moroccan recognition proceedings, the applicable law governing formal and essential validity, and whether the marriage should be recognised in England and Wales.

1. Rehearing. The matter was properly heard afresh. The court made its own findings on the whole of the evidence and did not give presumptive weight to earlier findings. Earlier Moroccan decisions were relevant evidence but did not create a strict estoppel preventing factual inquiry.
2. Lex loci celebrationis. The relevant law was Moroccan law. In a case where no conventional ceremony was alleged, “celebration” could include the legal process by which a marriage was created or validly given effect. The parties’ engagement, agreement and payment of a dowry, and the subsequent Moroccan proceedings, sufficiently connected the marriage with Morocco.
3. Local form. Art 16 of the Moroccan Family Code was the applicable retrospective local form. Following Starkowski, retrospective foreign legislation could validate an informal marriage even where the parties were later domiciled elsewhere. The Moroccan proceedings and registration sufficiently complied with local form. Although service had been defective, the husband knew of the proceedings, was represented, had an opportunity to respond and did respond. No substantial injustice was shown.
4. Essential validity. Consent and the method of expressing consent were matters of form governed by the lex loci celebrationis. Capacity to consent was governed by the law of domicile. Neither party lacked capacity. The husband’s proposal, subsequent assurances and conduct established consent at the relevant time.
5. Public policy. Recognition was not contrary to public policy. The husband’s objections concerned the consequences of a foreign law, not a result fundamentally offensive to English justice. The allegation of fraud was not established, particularly in light of the Moroccan perjury investigation and appeal.
6. The Moroccan marriage was capable of sustaining the wife’s divorce petition. The stay was lifted and directions were to be given for the petition’s progress.

The judgment was a rehearing in the High Court following earlier proceedings before HHJ Lord Meston KC. The Moroccan marriage-recognition decision was later upheld on appeal in Morocco. The Attorney General declined to intervene.