KC & Anor v City of Westminster Social & Community Services Dept. & Anor

I have had the advantage of reading Thorpe LJ’s judgment in draft. Like him, I would refuse permission to appeal on what he has identified as grounds 2 and 3 of the grounds of appeal: like him, I would grant permission to appeal on ground 1, but would dismiss the appeal. I add a separate judgment of my own; (1) because, in my judgment, ground 1 raises a point of considerable general and public importance; and (2) out of deference to the extremely able submissions made to us by Mr. Jan Luba QC on behalf of the appellants.

The appeal throws up a profound difference in culture and thinking between domestic English notions of welfare and those embraced by Islam. This is a clash which, in my judgment, this court cannot side-step or ignore. To the Bangladeshi mind, as admirably and clearly explained in the written evidence of the jointly instructed expert witness Dr. Werner Menski, Professor of South Asian Law at the School of Oriental and African Studies in the University of London (substantial extracts from which are cited in the appellants’ skeleton argument) the marriage of IC is perceived as a means of protecting him, and of ensuring that he is properly cared for within the family when his parents are no longer in a position to do so.

To the mind of the English lawyer, by contrast, such a marriage is perceived as exploitative and indeed abusive. Under English law, a person in the position of IC is precluded from marriage for the simple reason that he lacks the capacity to marry. No English Registrar of marriages could or would have contemplated celebrating a marriage between IC and NK, for the simple reason (amongst others) that no such Registrar could have issued a certificate of satisfaction that there was no lawful impediment to the marriage. Furthermore, as IC is incapable of giving his consent to any form of sexual activity, NK would commit a criminal offence in English law by attempting to have sexual intercourse, or indeed having any form of sexual contact with him.

To the mind of the English lawyer, the marriage is also exploitative of NK, although the evidence is that she entered into it with a full knowledge of IC’s disability. The English lawyer inevitably poses the rhetorical question: what young woman of marriageable age, given a free choice, would ally herself for life in marriage to a man who, on the evidence, may be disturbed by her introduction into his life; for whom she will have to care as if for a child; with whom, on the evidence, she will be unable to hold a rational conversation, let alone any form of normal social intercourse; by whom she cannot have children, and indeed with whom any form of sexual contact will, under English law, as already stated, constitute a criminal offence?

In my judgment, this is a case about recognition of the marriage, not about its validity. In my judgment, the fundamental questions raised by the appeal are; (1) whether or not the English Court has jurisdiction to refuse to recognise the marriage in fact celebrated between IC and NK; and (2) if so, whether it should exercise that jurisdiction.

I have come to very clear conclusions. They are that English law applies, and that this marriage is not entitled to recognition in English law. In other words, the answer to each of the questions posed in the preceding paragraph is undoubtedly “yes”. The purpose of this judgment is to set out my reasons for reaching these conclusions.

In what follows, I am, speaking for myself, content to adopt the consensus reached at the bar (and reflected in the judge’s seventh declaration) that, on the facts of this case, the marriage between IC and NK took place in Bangladesh, and that it is a valid marriage both in Shariah law and in Bangladeshi civil law. There was, of course, no appeal against this part of the judge’s order. The evidence was that IC remained in England and participated in the ceremony over the telephone. Once again, a marriage celebrated in this fashion is wholly alien to the English concept of a marriage ceremony leading to a valid marriage. Moreover, from an English perspective, the level of IC’s disability, and the fact that he suffers from echolalia (that is, he often repeats the last word spoken to him, without understanding its meaning) negates any meaningful participation in the ceremony on his part.

I therefore note the reservations expressed by Thorpe LJ in paragraphs 36 to 42 of his judgment, and in another case would welcome the point being fully argued. In the instant case, however, the judge’s acceptance of Bangladesh as the place in which, as a matter of law, the marriage was celebrated – together with the validity of the marriage in Bangladesh - does not affect either my reasoning, or the clear conclusions which I have reached.

Thorpe LJ has, of course, already set out the facts. Nonetheless, it is, I think, worth bearing in mind throughout the severity of IC’s disability and the extreme nature of the sad factual matrix underlying this appeal. This aspect of the case is summarised in paragraph 5 of the skeleton argument put forward by the local authority, which is itself based on overwhelming and incontrovertible expert evidence:-

“IC was born on 11 October 2001 and so is aged 26. He normally lives with his parents, KC and NNC. IC suffers from severe impairment of intellectual functioning and autism. Dr. Khouja (a jointly instructed consultant psychiatrist) says that in no area of his development does IC currently show the skills that one would expect of an average three year old and in many areas functions substantially below this. He needs very considerable support in all areas of his life and cannot be left alone without risk. He is highly suggestible and vulnerable. He receives home care five mornings a week before he attends a day centre five days a week and also receives a high level of respite care. He has been known to Social Services since he was four.”

I respectfully agree with Thorpe LJ that for an adult with such disabilities, marriage is, to English eyes, inconceivable.

Equally, were the Official Solicitor to take proceedings on behalf of, or in the name of IC to annul the marriage, I can, speaking for myself, see no defence to a petition under section 12(c) of the Matrimonial Causes Act 1973. I will return later in this judgment to the effect of that section on the court’s jurisdiction not to recognise the marriage.

Not even Mr. Luba’s able advocacy on behalf of IC’s parents could persuade me that any of these grounds was arguable. I am in no doubt at all that the inherent jurisdiction of the High Court to protect the welfare of incapable adults, confirmed in this court in Re F (Adult: Court’s Jurisdictions) [2001] Fam 38 survives, albeit that it is now reinforced by the provisions of the Mental Capacity Act 2005 (the 2005 Act). I am also in no doubt that a combination of the inherent jurisdiction and the provisions of the 2005 Act is apt to confer jurisdiction on the High Court to make orders about where IC should live, including the decision as to whether or not it is in his interests to go and live in Bangladesh. Mr. Luba’s alternative propositions, based on his default position that the jurisdiction existed, seemed to me equally unarguable.

The judge’s approach to the prospective exercise of his jurisdiction is contained in paragraphs 110 onwards of his judgment. At paragraphs 119 to 121, having cited extensively from the decision of Munby J in Re PS (An adult) [ 2007] EWHC 623, the judge says:-

“119.

I respectfully agree with the observations of Munby J, and, where it is necessary, lawful and proportionate I consider that this court can exercise its inherent jurisdiction in relation to mentally handicapped adults alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the Statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the Statute or any supplementary regulatory framework

120.

When considering the issue of the court’s powers (either under the 2005 Act or under the inherent jurisdiction) to inhibit the removal of IC from the jurisdiction, and thus to intrude upon the Article 8 rights which he has, and which his parents and siblings also have, under the Convention it is my judgment that this court should be extremely cautious before making an order the effect of which is to inhibit, or at times prohibit (when the return to Bangladesh either temporarily or permanently) the enjoyment of family life and the continuance of his residence with them, but is not prevented from so doing where the circumstances demand it for the protection of the vulnerable.

121.

It is the submission of Mr. Knafler (counsel for the parents) that the Mental Capacity Act provides a statutory code of such a comprehensive and complex nature that it has impliedly negated the inherent jurisdiction of the High Court as exercised under common law. He submits that if here is a gap in the legislation, the common law should not step in to fill it. No part of the 2005 deals with the issue of preventing the mentally incapacitated person from leaving the country. I have already given my view on that passage of the Guidance issued pursuant to the provisions of sections 43 and 44 of the Act, and that in my judgment, save where to do so would be demonstrably inconsistent with the will of Parliament, the inherent jurisdiction remains alive, in appropriate cases, to meet circumstances unmet by the scope of the legislation. That is not, to state the obvious, an invitation to a court so to do unless it is lawful, necessary and proportionate so to do.”

In my judgment, the judge’s approach in these paragraphs, and in this section of his judgment generally, cannot be faulted, and any appeal based on grounds 2 and 3 would stand no reasonable prospect of success. Furthermore, in my judgment, any such application for permission to appeal is plainly premature. It will be for the court at the substantive hearing to work out, relative to the facts which emerge, quite what the inter-relationship between the Statute and the inherent jurisdiction is, and any application for permission to appeal against the manner in which the judge chooses to exercise his jurisdiction must, plainly, relate to and be based upon, the outcome of the substantive hearing. The judge was clearly alert to the argument about the manner in which the court’s jurisdiction will fall to be exercised, and in my judgment, the attitude he displays demonstrates an appropriate caution.

For these reasons I, like Thorpe LJ, would refuse permission to appeal on grounds 2 and 3.

Mr. Luba’s principal argument on ground 1, as I understood it, was very simple, and ran as follows. Under English law, he accepted that IC lacked the capacity to enter into a valid marriage. However, the status of the marriage he in fact entered into is, in English law, governed by Statute. Section 12(c) of the Matrimonial Causes Act 1973 (the 1973 Act) clearly renders the marriage into which IC in fact entered voidable, not void. It follows, he argued, that as a matter of English law it remains a valid marriage unless and until it is the subject of a decree of nullity pronounced in the English courts, and even then, it will not be held to be void ab initio; rather it will be held to be of no effect from the date of the decree absolute of nullity: see section 16 of the 1973 Act. In these circumstances, Mr. Luba submitted, there is simply no power in the English court to deny it recognition. Parliament has spoken, and the courts must implement the law as laid down by Parliament.

This is, of course, a powerful argument, and one which would, in many cases, be irrefutable. I am, however, unable to accept it in this case. In my judgment, this marriage cannot be afforded recognition either on its own or in the context of the development of English private international law in relation to marriage. There are also powerful public policy grounds for refusing recognition.

I acknowledge, of course, as I have to, that, as a matter of English domestic law, section 12(c) of the 1973 Act renders the marriage between IC and JK voidable rather than void. It does not, however, in my judgment follow that the English courts are bound to recognise the marriage as a valid marriage. To put the matter another way, the status conferred by sections 12 and 16 of the 1973 Act on the marriage is in no sense inconsistent with the High Court’s capacity to refuse it recognition. There are, I think, a number of good reasons for so concluding. I propose to set them out under different headings.

In my judgment, this is a case to which the dual domicile rule applies. I take the rule itself from Dicey, Morris & Collins on The Conflict of Laws, 14^th edition at paragraph 17R-054 (Volume 2, page 810):-

“Rule 67. As a general rule, capacity to marry is governed by the law of each party’s ante-nuptial domicile.

Subject to Exceptions 1, 2 and 3 below, a marriage is valid as regards capacity when each of the parties has, according to the law of his or her ante-nuptial domicile, the capacity to marry the other.

Subject to Exceptions 1, 4, 5 and 6 below, a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her ante-nuptial domicile, the capacity to marry the other.”

None of the exceptions applies on the facts of the instant case. Exception 1 applies where there has been a change of gender; exception 2 relates to royal marriages; exceptions 3 and 4 relate to marriages celebrated in England; exception 5 relates to a marriage which has been dissolved by a decree of divorce or nullity; and exception 6 applies to marriages where the incapacity in question is “penal, discriminatory or otherwise contrary to public policy”.

In my judgment, the dual domicile rule is well established in English law, has been frequently applied, and produces no injustice in the instant case. IC does not have the capacity to marry under the law of his acknowledged ante-nuptial domicile, and under that law a marriage contracted by him is, in Thorpe LJ’s word “inconceivable”. Any marriage so contracted is, accordingly, not entitled to recognition.

Counsel before us helpfully traced the history of the dual domicile rule through the jurisprudence, beginning with the decision of the House of Lords in Brook v Brook (1861) 9 H.L. Cas. 193 (Brook). I do not think it necessary to set out to undertake the same exercise, although it is helpful to recall what the facts of Brook were.

In Brook an Englishman, domiciled in England, married the sister of his deceased wife, who was an English woman also domiciled in England. The marriage took place in Denmark, where such a marriage was valid. The House of Lords held, nonetheless, that the marriage was void in English law. I think it sufficient to cite only the first paragraph of the head note, which reads:-

“The forms of entering into the contract of marriage was regulated by the lex loci contractus, the essentials of the contract depend upon the lex domicilii. If the latter are contrary to the law of the domicile, the marriage, (though duly solemnised elsewhere) is there void.”

Brook, like a number of the subsequent cases, was decided before the distinction in English law was drawn between marriages which were void and voidable. In my judgment, however, this does not affect the force or applicability of the dual domicile rule.

That rule received emphatic support in Sottomayor, orse De Barros v De Barros (Sottomayor) which, as the late Mr. Joseph Jackson QC points out in an illuminating commentary in his remarkable book The Formation and Annulment of Marriage (2^nd edition, 1969 at pp 162-3), came before the court three times: - see (1877) 2 PD 81; (1877) 3 PD 1, CA; and (1879) 5 PD 94. In that case, first cousins, both domiciled in Portugal, went through a ceremony of marriage in England. Eight years later, they returned to Portugal. Under the law of that country, their marriage was illegal, as being incestuous. Their domicile, throughout, remained that of Portugal. This court, reversing the court below, held that the marriage was void because neither party had the capacity to contract it under the law of their ante-nuptial domicile.

It is, I think, notable that in the Court of Appeal in Sottomayor, Cotton LJ in this court stated in terms that “no country was bound to recognise the laws of a foreign state when they work injustice to its own subjects” ((1897) 3 PD1 at 7), and in what the judge in the instant case in paragraph 76 of his judgment described as Sottomayor (number 2) (1879) 5 PD 94, Sir Gorrell Barnes P repeated the same sentiment, prefacing it with the words; “All persons are legally bound to take notice of the laws of the country where they are domiciled”.

I respectfully agree with the judge when he comments that:-

“Although this particular decision has been criticised in, for example, Dicey as being overly Anglo-Centric, the above statement of principle, reflecting a position on public policy, remains, in my judgment, persuasive, whilst of course requiring a rigorous analysis of the facts and law relevant to the individual case.”

Against this background it is, I think, sufficient for me to express my agreement with paragraph 35 of the judgment of the judgment of Munby J in X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) [2006] EWHC 168 (Fam); [2006] 2 FLR 968, which Roderic Wood J cites at paragraph 73 of his judgment:-

“[35]   The one thing which in my judgment is quite clear, and has been ever since the decisions of the House of Lords in Brook v Brook (1861) 9 HLC 193 and the Court of Appeal in Sottomayor v De Barros (1877) 3 PD 1, is that capacity to marry, in contrast with formal validity, is not governed by the lex loci celebrationis. So it is neither here nor there that a marriage celebrated in Pakistan might be recognised as valid in that country. The short point is that [B's] incapacity to marry in the eyes of English law means that no marriage entered into by him, either in this country or abroad, will be recognised in English law. And if it is not recognised in English law it will not be recognised by English public authorities.”

X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) has a number of similarities with the instant appeal. The subject of the proceedings, B was aged 25 and autistic. He was a Muslim living with, and being devotedly cared for by, his parents in the United Kingdom. B, the judge found, lacked the capacity to marry. His parents wanted, nonetheless, to take him to Pakistan in order to be married. Thus the principal difference between the facts of the case and the instant appeal is that B had not actually undergone a ceremony of marriage.

Munby J held that he had a protective jurisdiction to prevent a vulnerable adult from being taken abroad to be married, although in the event he accepted undertakings from B’s parents through counsel that they would not take B out of England and Wales and would not cause or permit him to undergo any civil or religious ceremony or marriage. The judge also made a declaration that any purported marriage by B whether celebrated inside or outside England and Wales would not be recognised in English law.

In my judgment, X City Council v MB, NB and MAB (by his Litigation Friend the Official Solicitor) was correctly decided, and the jurisdiction identified by Munby J in paragraph 27 of his judgment, which I do not propose to set out, is aptly summarised and was correctly exercised.

I fully accept, as a matter of public policy, that, where it is appropriate to do so, the courts will seek to uphold the concept of marriage. It also seems from the authorities that in cases where the dual domicile role would result in non-recognition, and where non-recognition would contradict or conflict with the principle of upholding the concept of marriage, the courts have looked for alternative ways of recognising particular marriages. This has led, as I read the authorities, to the concept that a marriage will be recognised if the parties have capacity under the law of the country of their intended matrimonial home or under the law of the country with which the marriage has its most real and substantial connection: - see, for example, Lawrence v Lawrence [1985] Fam 106, in which, at 115, Anthony Lincoln J said:-

“For my part, I consider it desirable that contracts of marriage entered into in circumstances such as occurred in the instant case (where the domiciles became English) should be upheld rather than destroyed. If the application of the criterion of real and substantial connection results in a marriage being held valid and the application of the dual domicile criterion results in an invalidation, in my view, the former should prevail.”

It is, however, to be noted that in Lawrence v Lawrence no question of mental or intellectual capacity was involved. The parties to the marriage in question were competent adults. The wife, who was a Brazilian national who had married another Brazilian national in Brazil. Divorce was not recognised in Brazil. The wife obtained a divorce in Nevada and shortly afterwards married an American who lived in England, and who had acquired a domicile of choice in England. The couple then established their matrimonial home in England. However, according to the law of her ante-nuptial domicile (Brazil), which did not recognise divorce, the wife was unable lawfully to contract the marriage.

The marriage was recognised in England. It is, however, as it seems to me, a very long way from the facts of the instant case, and in my judgment when, at [1985] Fam 106 at134, Sir David Cairns expressed agreement with Sir George Baker P in Perrini v Perrini [1979] Fam 84,92 “that, if possible the court should uphold a marriage” he plainly had in mind a marriage between competent adults which, in every respect except for the fact of the ante-nuptial domicile of one of them, conformed to the conventional English model of marriage.

The high point of this alternative approach is, I think, the speech of Lord Simon of Glaisdale in Vervaeke (formerly Messina) v Smith [1983] AC 145 at 164-166. It is, in my judgment, worthwhile spending a moment recalling the facts of that case. Mrs. Vervaeke, who was Belgian, had married a Mr Smith in England in order to obtain a British passport, British Nationality, and the ability to continue to work as a prostitute in England. Mr and Mrs. Smith, as they became, parted immediately after the ceremony. In other words, it was a pure marriage of convenience, which was never consummated and Mr and Mrs Smith had no intention of living together as husband and wife. Nonetheless, it was a marriage into which both had the capacity to enter, and which was validly celebrated under the Marriage Acts.

Sixteen years later, Mrs. Smith went through a ceremony of marriage with Mr. Messina in Italy. He died the same day. Mr. Messina was a rich man, with substantial property (albeit largely ill-gotten) in England. Mrs. Smith / Messina could only claim against his estate if her marriage to him was valid.

Mrs. Vervaeke, as I shall henceforth call her, then sought, in England, a decree of nullity in relation to her marriage to Mr. Smith on the ground that she had not consented to it. This was granted, but the evidence on which she obtained it was false, and the decree was subsequently set aside by Ormrod J who upheld her marriage to Mr. Smith. Mrs. Vervaeke then applied to the Belgian courts and obtained a declaration that her marriage to Mr. Smith was void ab initio, because it was a mock marriage. Mrs. Vervaeke then followed this up by applying in England for a declaration that the Belgian decree of nullity was entitled to recognition alternatively for a declaration that marriage between herself and Mr. Messina was valid.

In this latter endeavour, she failed, and her application was dismissed: The reasoning of the English courts was, in essence, that because Ormrod J had upheld her marriage to Mr. Smith, Mrs. Vervaeke was still married to him when she went through the ceremony with Mr. Messina. The Belgian decree was not thus entitled to recognition on both res judicata and public policy grounds.

It was conceded on behalf of Mrs. Vervaeke ([1983] AC 145 at 148) that if the appeal was decided against Mrs. Vervaeke on the basis of res judicata, that would dispose of the appeal. That, indeed, was the basis upon which Lord Diplock disposed of what he described as “this sordid case” ([1983] AC 145 at 157-161). Ormrod J’s decision to set aside the English decree of nullity left the marriage to Mr. Smith in being. That marriage remained a valid marriage, even though it was, in shorthand, a marriage of convenience and nothing else.

On this basis it can be argued that what Lord Simon had to say on the subject of public policy was obiter dicta and thus not binding on this court. However, dicta from such a distinguished source are entitled to great respect. The question, of course, was whether or not the court should uphold the marriage to Mr. Smith or uphold the Belgian decree declaring the marriage to Mr. Smith a nullity.

Early in the passage in the part of his speech dealing with the question of public policy, Lord Simon stated:-

“There is abundant authority that an English court will decline to recognize or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy; although the court will be even slower to invoke public policy in the field of conflict of laws than when a purely municipal legal issue is involved.”

Slightly later come the passages upon which reliance is placed in the instant case:-

“The only question is whether this [that is, the marriage to Mr. Smith] constituted a marriage, as to which English and Belgian public policy, as expressed in their respective laws, have returned different answers. If the crucial distinction is between forms and ceremonies on the one hand and essential validity on the other, this was a matter of essential validity. If, as seems to me to be intelligible, questions of capacity and perhaps reality of consent are to be hived off and separately considered, this was a question of quintessential validity; and I can see no reason why the personal law should be invoked, particularly as the personal law of the parties differed and, moreover, each imported a different connecting factor (domicile and nationality respectively). I venture to propose two other possible choices of the law to adjudge this sort of quintessential validity: first, the lex loci celebrationis; and, secondly and to my mind preferably, the law of the territory with which the marriage has the most real and substantial connection…

The second test is the application to choice of law of the criterion which your Lordships proposed in Indyka v. Indyka [1969] 1 A.C. 33 in considering recognition of the jurisdiction of a foreign divorce court. This criterion of a real and substantial connection seems to me to be useful and relevant in considering the choice of law for testing, if not all questions of essential validity, at least the question of the sort of quintessential validity in issue in this appeal - the question which law's public policy should determine the validity of the marriage. The territorial law with which a marriage has the most real and substantial connection will often be the law of the prospective matrimonial home: this was the law favoured to govern all questions of essential validity by Cheshire's Private International Law, and by Lord Greene M.R. (Somervell L.J. concurring) in De Reneville v. De Reneville [1948] P. 100, 114. The test of the most real and substantial connection may obviate some of the objections to the test of the prospective matrimonial home - e.g., that the latter gives no guidance where no matrimonial home is clearly indicated or, as here, no cohabitation at all is proposed. Undoubtedly, in the instant case, England was the territory with which the marriage had the most real and substantial connection: the ceremony was in England, the "husband" was of English domicile and British nationality, the "wife" was to assume British nationality and take advantage of it, and she was to become permanently resident in England. There was indeed no other territorial law with which the marriage had any real or substantial connection.

If, as I think, our choice of law rule (whether Lord Brougham's or the extension of the Indyka principle) indicates English law as determinant of the validity of this marriage, it provides a potent reason for preferring the legally recognised English public policy and thus for refusing recognition to the Belgian judgment based on a contrary public policy.

(5)

The appellant intended by the marriage to, and did as a result of the marriage, take advantage of English public law. I do not say that a party can by approbation convert a void or non-existent into a valid marriage, or that anyone can be "married by estoppel." Nor do I think that the appellant's career of criminal sexual prostitution or her perjury are relevant factors. But her having taken advantage of English public law in consequence of the marriage does seem to me a factor to be taken into account in determining whether to prefer English public policy as to the validity of the marriage, and thus refuse to accord binding force to the Belgian judgment.”

I have dealt at length with the case of Vervaeke (formerly Messina) v Smith because it seems to me important to be clear about the marriage with which the court was concerned in that case: - that is, the marriage to Mr. Smith. This was, in particular, a marriage between two competent adults, and had been validly celebrated under English law. In my judgment, this is many miles away from a marriage entered into by an English domiciled man who lacks capacity to enter into it, and which, if celebrated in England as an English marriage would be void. In my judgment, there are powerful public policy arguments against the recognition of such a marriage.

Even if, however, one applies the tests identified by Lord Simon, the result, in my judgment, is the same. As I have, I think, already made clear, my view is that the dual domicile rule applies in the instant case, and that it produces no injustice. It is, I think, therefore strictly unnecessary for me to consider the alternative bases for recognition. However, if I am wrong about the application of the dual domicile rule, my judgment is that the ceremony of marriage at the heart of this appeal should not be afforded recognition on the basis of either of the tests identified by Lord Simon.

In my judgment, the alternative tests posited have to be applied as at the date of the ceremony of marriage. In the instant case, the intention of IC’s parents at that point was crystal clear. On 2 May 2007, when IC’s parents’ solicitors wrote to the local authority informing it of IC’s marriage, they did so in the following terms: -

In my judgment, nothing could be clearer. The country in which IC’s parents, KC and NNC intended that IC and NK should make their matrimonial home was to be England. Their married life was to be spent in England. It is common ground that IC is both a British subject and domiciled in England and Wales. His domicile follows that of his father, who has lived in England for some 49 years and who, as at the date of the marriage, intended to spend the rest of his days in England. Indeed, it is only very recently, that he has expressed the intention to return to Bangladesh at some undefined point in the future.

In my judgment, therefore, since it was plainly the intention of IC’s parents that he and his wife should make their home permanently in England, this country is not only the designated country of the matrimonial home, but the country with which the marriage has the closest connection.

In my judgment, as my citation from the authorities has, I hope made clear, departures from the dual domicile rule designed to uphold the principle of marriage may be appropriate when the marriage in question is one which, on grounds of public policy, the courts will think it right to uphold. To qualify for such treatment in English law, however, a marriage must in my judgment conform to English concepts of marriage. In my judgment, the absence of any capacity on the part of IC to enter into marriage is wholly inconsistent with English notions of marriage. The fact that the marriage would be recognised if the parties were living in Bangladesh seems to me, as Munby J put it in the passage from X City Council cited above, neither here nor there. IC and his parents are living in England: at the date of the marriage, the intention was that NK would join them in England. It is, accordingly, in my judgment, English notions of marriage which must inform the question of recognition both on the basis of the dual domicile rule, and on either of the alternative bases proposed by Lord Simon in Vervaeke v. Smith.

I now return to the main point of Mr. Luba’s argument. We were not taken to the Parliamentary debates during the course of which Parliament enacted firstly the Nullity of Marriage Act 1971 and, thereafter, sections 12 to 16 of the 1973 Act. Speaking for myself, however, I can envisage circumstances in which it might be appropriate to protect a respondent who, without the capacity to do so, had nonetheless entered into a marriage, from the effects of being vulnerable to a decree which rendered the marriage void ab initio. Whilst any such considerations must be, to an extent, speculative, a clue to why this is so may be contained in section 13(1) of the 1973 Act, which reads:-

“13 Bars to relief where marriage is voidable

(1)

The court shall not, in proceedings instituted after 31st July 1971, grant a decree of nullity on the ground that a marriage is voidable if the respondent satisfies the court—

(a)

that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and

(b)

that it would be unjust to the respondent to grant the decree.”

I recognise, however, that section 12c and 16 are clear on their face, and plainly represent the will of Parliament. It is, therefore, necessary to examine their effect carefully.

As I have already stated, the effect of sections 12c and 16 of the 1973 Act in English domestic law is, in my judgment, quite separate from the question whether or not the marriage in this case is entitled to recognition. This, I think, is clearly illustrated by the particular case on which the appellants place considerable reliance, namely In re Roberts, decd; Roberts v Roberts [1978] 1 WLR 653 (Roberts).

Roberts was an action for a grant of letters of administration in respect of the estate of the deceased, with whom the plaintiff had gone through a ceremony of marriage shortly before his death, at a time when it was alleged he was suffering from senile dementia and lacked the capacity to consent to the marriage. The effect of the marriage, if valid, was to revoke the deceased’s previous will in favour of the defendants. Both Walton J and this court took the view that since the marriage, pursuant to section 12c and 16 of the 1973 Act was voidable rather than void, it subsisted at the date of the deceased’s death, and as a consequence revoked the deceased’s previous will under the Wills Act 1837.

I do not doubt the correctness either of Walton J’s decision or the decision of this court, which is plainly binding on us. The case does not, however, assist me in the context of this appeal. The marriage in question was celebrated in England between two English people, both of whom were domiciled in England. It had no “foreign”, or private international law element. In such a domestic context, the question for the court was whether or not the marriage, which was subsisting at the date of the deceased’s death was effective to revoke his previous will. Plainly, it was.

In my judgment, Roberts is simply not relevant to the issues we have to decide. What it decides is that a voidable marriage which has not been the subject of a decree of nullity operates to revoke the wills made by the parties to it. In my judgment, that does not affect the question of whether the marriage in the instant case is entitled to recognition in English law.

Mr. Luba argued that a refusal to recognise IC’s marriage would breach his rights under Articles 8 and 12 of ECHR. I do not agree. IC’s rights under ECHR Article 8 are, in any event, qualified by Article 8(2), and his right to marry under ECHR Article 12 exists “according to the national laws governing the exercise of this right”. In the context of this case, the “national laws” must mean the laws of England, and in my judgment there is nothing to suggest that the relevant Marriage Acts and the English concept of capacity to marry offend either HRA 1998 or ECHR Article 12. In any event, the State’s intervention in the life of IC seems to me, on the available evidence, well within ECHR Article 8(2) and it would also seem to me that any State of the European Union is entitled both to pass laws to regulate marriage, and to decide that those incapable of entering into it should not do so.

In this case, uncle and niece, who later became domiciled in England, married in Cairo in accordance with Jewish rites. Both intended to enter into a monogamous marriage. The marriage was valid by Jewish and Egyptian law, albeit that it was potentially polygamous. However, it became irrevocably monogamous on the birth of a child. Much later, the wife took proceedings in England to annul the marriage on the ground of consanguinity, and the question for the President, Sir Jocelyn Simon P (as he then was) was whether or not the court had jurisdiction to adjudicate on a marriage which, at its inception, was potentially polygamous. The President decided that he did.

During the course of his judgment, Sir Jocelyn Simon said this:-

“But whatever test is adopted, the marriage in this case was in my judgment a valid one. I do not consider that a marriage which may be the subject of papal dispensation and will then be acknowledged as valid by all Roman Catholics, which without any such qualification is acceptable to all Lutherans, can reasonably be said to be contrary to the general consent of Christendom; and the passages I have quoted from Story himself and from those who have commented on him bear this out. If the general consent of civilised nations were to be the test, I do not think that the matter can be resolved by, so to speak, taking a card-vote of the United Nations and disregarding the views of the many civilised countries by whose laws these marriages are permissible. As Mr. Argyle observed, Egypt, where these people lived and where the marriage took place, is itself a civilised country. If domestic public policy were the test, it seems to me that the arguments on behalf of the husband, founded on such inferences as one can draw from the scope of the English criminal law, prevail. Moreover, they weigh with me when I come to apply what I believe to be the true test, namely, whether the marriage is so offensive to the conscience of the English court that it should refuse to recognise and give effect to the proper foreign law. In deciding that question the court will seek to exercise common sense, good manners and a reasonable tolerance. In my view it would be altogether too queasy a judicial conscience which would recoil from a marriage acceptable to many peoples of deep religious convictions, lofty ethical standards and high civilisation. Nor do I think that I am bound to consider such marriages merely as a generality. On the contrary, I must have regard to this particular marriage, which, valid by the religious law of the parties' common faith and by the municipal law of their common domicile, has stood unquestioned for 35 years. I must bear in mind that I am asked to declare unmarried the parents of a child who is unquestionably legitimate in the eyes of the law:”

In considering this passage it is, in my judgment, once again, important to keep clearly in mind the marriage with which the President was dealing. It was between two consenting adults, neither of whom lacked the mental capacity to enter into a marriage; both of whom had intended to contract a monogamous marriage; who had lived together as husband and wife, and had a child – a fact which, of itself, rendered the marriage monogamous. In these circumstances it is unsurprising that the President strove to uphold it. The only factor which tainted it was the fact that at its inception it had been potentially polygamous. It was otherwise in every respect what to an English lawyer would comprise a true marriage.

In my judgment, quite different considerations apply to the marriage with which we are concerned. In particular, the absence of any capacity on IC’s part, either to consent to the marriage itself or to sexual intercourse, in my judgment, strikes at its root. If, therefore, in the popular phrase, push comes to shove, I would, applying Sir Jocelyn Simon’s words to the facts of the instant case hold that the marriage in the instant appeal is sufficiently offensive to the conscience of the English court that it should refuse to recognise it, and should refuse to give effect to the law of Bangladesh and Shariah law. In so doing, I take the view that the court would be exercising “common sense, good manners and a reasonable tolerance”, and would properly be applying the law of England.

I am therefore firmly of the view that IC’s marriage to NK is not entitled to recognition in English law. I respectfully agree, however, with Thorpe LJ’s observations on the inapplicability of Part III of the Family Law Act 1986. These proceedings were launched under the inherent jurisdiction of the High Court, not under Part III of the 1986 Act.

As I have already stated, this case, in my judgment, is about recognition, and I therefore agree with Thorpe LJ’s conclusion that in place of the existing declaration (h) there should be substituted a declaration that the marriage between IC and NK, valid according to the law of Bangladesh, is not recognised as a valid marriage in this jurisdiction.

Save to this very limited extent, I would dismiss the appeal.

I have had the advantage of reading the judgments of Thorpe and Wall LJJ in draft. I entirely agree and have nothing to add.