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Reported Case

Landmark Ruling: Marriage Deemed Unrecognisable by Court of Appeal in SA, Re (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003 (29 November 2023)

Date: 29/11/2023
Duncan Lewis, Reported Case Solicitors, Landmark Ruling: Marriage Deemed Unrecognisable by Court of Appeal in SA, Re (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003

In a landmark ruling by the Court of Appeal in the case of SA, Re (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003, Duncan Lewis Family Law Director Krina Parmar secured a significant victory for the client, representing the father of SA.

The ruling upheld the decision to invalidate SA's marriage within the jurisdiction of the United Kingdom. The court's determination was rooted in SA's substantial intellectual impairment, leading to the conclusion that SA lacked the capacity to enter into a marital relationship or engage in sexual relationships. This case marks an important precedent in assessing the capacity for marriage within the legal framework, reflecting the nuanced considerations of individuals' abilities to enter into such relationships.

Background

SA was born in the UK, and travelled with her mother to Bangladesh on the 6th October 2019. She had become engaged to marry her cousin, NU, on 11 October; and married on 18 October 2019 .

The Local Authority, the Police, and the Forced Marriage Unit were appraised of the situation, prompting the Local Authority to set in motion the procedure for obtaining a Forced Marriage Protection Order (FMPO) under Part 4A of the Family Law Act 1996 ("the FLA 1996") on October 24, 2019. The FMPO was officially granted on October 25 2019. Unfortunately, already being in Bangladesh, the ceremony had already taken place on 25 October.

The case concerns whether the marriage between SA and NU should be recognised in the jurisdiction of England and Wales, where SA lives. The Local Authority sought an declaration from the High Court to use its inherent jurisdiction not to legally recognise the marriage in the England and Wales.

SA suffers from a significant intellectual impairment. In assessing SA’s mental capacity throughout the trial, which commenced in early 2022, SA was diagnosed as having a moderate learning disability with an extremely low range of ability in all areas of cognitive and adaptive functioning.
The judge set out the evidence at the Capacity Hearing in February 2022 as to the extent of SA's learning disability. This included that SA "is in the extremely low range of ability"; she is "only able to hold up to five pieces of information at one time [and] would not be able to mentally manipulate fives pieces of information consistently"; she "would have difficulty problem-solving"; she cannot write or read; she is "unable to shower"; and she is "suggestible" and "has no ability to resist how she was being steered by others".

The judge concluded in Capacity final hearing that SA did not possess the capacity to provide consent for marriage or to engage in sexual relations. The matter came back to court in May 2022 to decide whether it was in the best interests of SA to make a declaration that the marriage would not be legally recognised in the jurisdiction of England and Wales. At the Best interests hearing in May 2022 Mr Justice Newton determined that the marriage will not be legally recognised in the jurisdiction of England and Wales, that there should be a forced marriage protection order for SA which expires after 5 years.

The Court of Appeal

SA’s mother appealed the decision on the grounds that the court's decision to issue the declaration was flawed, as it should not have employed the inherent jurisdiction as a means to circumvent the implications of Sections 55 and 58 of the Family Law Act 1986. The mother also argued that the application of inherent jurisdiction to issue a declaration of non-recognition of marriage is permissible only under "exceptional public policy grounds," and it was argued that this case did not meet the threshold for such exceptional circumstances.

The CA gave permission to appeal and the case was heard in January 2023 and also live streamed. In his leading judgement , Justice Moylan concluded: ‘As set out above: (i) the FLA 1986 does not prohibit the court from making a declaration of non-recognition in respect of a foreign marriage which is voidable under English law; and (ii) the judge was entitled to make such a declaration in this case. Accordingly, in my view, the appeal must be dismissed.’

Those instructing on this case were Krina Parmar, Natasha Patel, Bhavini Joshi and Katie Williams-Howes of 3DJB Chambers.

Duncan Lewis Solicitors

The Family department comprises a professional, efficient team with a wealth of experience in dealing with all aspects of Family Law. Our overriding priority is to listen to all of the issues in your case and explore the best way of resolving your problems. Our team is ranked Tier 1 in The Legal 500 2024 as an "exceptional" family team with a "stellar reputation" for "going the extra mile".

 

Find full details of this case on Bailii’s website here.
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