SA (Declaration of Non-Recognition of Marriage), Re

The inherent jurisdiction may be used to declare that a foreign marriage is not recognised in England and Wales even where the marriage is voidable, rather than void, under domestic law. Sections 55 and 58 of the Family Law Act 1986 do not prohibit that declaration. Recognition is distinct from validity, and the statutory bar concerns a declaration that a marriage was void at inception. The public-policy threshold is high, but it does not require severe violence, exceptional circumstances or a high degree of suffering. A forced marriage involving a person unable to consent to marriage or sexual relations may be sufficiently offensive to English public policy to justify non-recognition.

SA, who was domiciled in the United Kingdom and had significant intellectual impairment, travelled to Bangladesh and underwent a marriage ceremony with NU. The High Court found that SA lacked capacity to consent to marriage or sexual relations, made a Forced Marriage Protection Order, and declared that the marriage was not recognised as valid in England and Wales.

SA’s mother appealed. The issues were whether the inherent jurisdiction was excluded by sections 55 and 58 of the Family Law Act 1986, whether a declaration was available only on exceptional public-policy grounds, and whether statutory nullity or divorce proceedings were the required remedies.

The appeal was dismissed. The Court of Appeal upheld the declaration that the marriage was not recognised as valid in England and Wales.

1. The court was bound by Westminster City Council v C and Others [2009] Fam 11, which had expressly recognised jurisdiction to make a non-recognition declaration in respect of a foreign marriage that was voidable under English law. The present case was indistinguishable in that respect.
2. Section 58(4) of the Family Law Act 1986 prevents declarations otherwise than under Part III only where the declaration is one for which Part III provides. Part III contains no express provision for a declaration that a foreign marriage is not recognised. Section 58(5)(a) prohibits a declaration that a marriage was void at inception. A voidable marriage is not void at inception: under section 16 of the Matrimonial Causes Act 1973, annulment operates only from the final decree. The declaration therefore did not bypass the statutory scheme.
3. Recognition and validity are distinct questions. The fact that lack of consent makes a marriage voidable under section 12(1)(c) of the Matrimonial Causes Act 1973 does not require the English court to recognise the marriage as valid or prevent refusal of recognition on public-policy grounds.
4. The public-policy jurisdiction has a high threshold. The relevant inquiry is whether recognition would be inconsistent with fundamental public policy or whether the marriage is sufficiently offensive to the conscience of the English court to justify refusing recognition. No additional test of exceptionality applies, and severe violence or a high degree of suffering is unnecessary.
5. The statutory and common-law opposition to forced marriage reinforced the conclusion. The absence of capacity to consent to marriage or sexual relations struck at the root of the marriage. Given SA’s profound learning disability, suggestibility, inability to resist being steered by others, and lack of capacity, the judge was entitled, and was right, to make the declaration despite SA’s expressed wish that the marriage continue.
6. The broader observations in NB v MI [2021] 2 FLR 786 were obiter and were not followed insofar as they treated section 58(5)(a) as extending to voidable marriages or required a highly exceptional case.

1. Court of Appeal (Civil Division): Appeal dismissed on 30 August 2023. The court upheld the High Court’s declaration of non-recognition.
2. High Court of Justice, Family Division: Newton J made the declaration on 26 May 2022, together with a Forced Marriage Protection Order and findings that SA lacked capacity to consent to marriage and sexual relations.