HUSBAND AND WIFE — Marriage — Capacity to marry — Vulnerable adult habitually resident in England — Married in telephone ceremony to Bangladeshi bride — Marriage valid according to Bangladeshi law — Local authority seeking declaration as to capacity to marry — Status of marriage

Westminster City Council v IC (a protected party by his litigation friend) and others [2008] EWCA Civ 198; [2008] WLR (D) 92

CA: Thorpe, Wall and Hallett LJJ: 19 March 2008

A judge did not have jurisdiction to make a declaration that a marriage based on lack of consent was not valid under English law, since such a marriage was voidable and not void ab intitio. The judge should have declared that the marriage was not recognised as a valid marriage in this jurisdiction.

The Court of Appeal so held in a reserved judgment when granting permission to appeal to the parents of IC, a 26 year old severely disabled man, and allowing the appeal to the limited extent that the declaration made by Roderic Wood J following a judgment on 21 December 2007 [2007] EWHC 3096 (Fam) that the marriage of IC and his bride was not valid under English law should be substituted by a declaration that the marriage, although valid according to the law of Bangladesh, was not recognised as a valid marriage in this jurisdiction.

The family at the heart of the appeal were British nationals domiciled and habitually resident in this jurisdiction. However the family was of Bangladeshi origin and only IC had been born in the United Kingdom, in 1981. He suffered from severe impairment of intellectual functioning and autism. The local authority had been involved in supporting and protecting him since he was four years old. In 2006 the local authority raised the issue of marriage with IC’s parents. There was no agreement that IC could not and should not ever marry, so the local authority applied under the inherent jurisdiction of the High Court for a declaration as to IC’s capacity to marry. IC’s parents responded that IC had married in a Muslim ceremony by telephone.

THORPE LJ said that the judge had been wrong to reject submissions on behalf of IC’s parents founded on s 12(c) of the Matrimonial Causes Act 1973 which provided that the marriage was voidable. The judgment and reasoning of the Court of Appeal in In re Roberts, deceased [1978] 1 WLR 653 was clear and binding. His Lordship was reinforced in that view since ss 55 to 58 of the Family Law Act 1986 had not been drawn to the attention of the judge. S 55(1) itemised the declarations as to marital status which the court could make. What was significantly absent was any provision permitting a declaration that the marriage was at its inception an invalid marriage. The only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. Had the judge had his attention drawn to the provisions of the 1986 Act his Lordship did not think that he would have made the declaration that he did. In the Court of Appeal there had been no investigation nor any argument as to the place of celebration. His Lordship would not wish it to be taken to endorse the consensus reached between the parties to the effect that the marriage was celebrated in Bangladesh.

WALL LJ delivered a concurring judgment and HALLETT LJ agreed.

Appearances: Jan Luba QC and Stephen Knafler (Bennett Wilkins) for the parents of IC; Alex Verdan QC (Creighton & Partners) for the local authority; Alison Ball QC and Andrew Bagchi (Irwin Mitchell) for IC.

Reported by: Geraldine Fainer, barrister