Capacity to marry and marriages abroad

While the Mental Capacity Act 2005 (MCA), which came into force on 1 October 2007, does cover most day-to-day decisions being taken by the most vulnerable in society, it does not address decisions to be made by an adult on the question of marriage or sexual relations '“ s 27 specifically excludes best interests decisions being taken in relation to marriage and consenting to sexual relations. Where an individual's decision making capacity on the question of marriage and sexual relations is called into question it is under the inherent jurisdiction that the High Court, Family Division, considers these most vital decisions in a person's life. But what approach will the court take to a marriage of a person who lacks the capacity to marry under domestic law but where the marriage was conducted abroad?

In (1) KC (2) NNC v (1) City of Westminster Social & Community Services Department (2) IC (a protected party, by his litigation friend the Official Solicitor) [2008] EWCA Civ 198 the Court of Appeal held that a valid marriage in accordance with both Sharia Law and Bangladeshi law would nevertheless not be recognised as a valid marriage where it offended public policy to do so.

The appellant parents (KC and NNC) appealed against a declaration by Mr Justice Wood ([2007] EWHC 3096 (Fam)) that the marriage of their son (IC) was not valid under English Law.

Background

IC, a British subject aged 26 was represented by the Official Solicitor. He was born in England and it was accepted by all parties that he was domiciled in England at the time of the marriage. His parents, KC and NNC, originate from Bangladesh, although they have lived in England for many years. IC is autistic and has a learning disability with severe and global developmental delay. Expert evidence indicated that his cognitive function was around the age of a three year old. IC has been brought up in a Muslim family, and in accordance with the family's religious and cultural traditions the family arranged in September 2006 for IC to be married over the telephone to NK, who was (and remains) in Bangladesh. They challenged the applicability of the inherent jurisdiction to prevent IC being removed from the country given the introduction of the MCA which could not govern decisions regarding domicile, marriage or sexual relations.

It was accepted by all parties at first instance that in accordance with English law IC lacks the capacity to marry and to consent to sexual relations. Expert evidence before the court indicated that IC did not appear to understand the difference between men and women and that a wedding ceremony would be meaningless to him.

Mr Justice Wood in declaring that IC lacked capacity approved the legal test to be applied in assessing a person's capacity to marry as summarised by Munby J in Re E (An alleged patient); Sheffield City Council v E [2005] 1 FLR 965 (at para 141):

'(i) The question is not whether E has capacity to marry X rather than Y. The question is not (being specific) whether E has capacity to marry S. The relevant question is whether E has capacity to marry.

(ii) The question of whether E has capacity to marry is quite distinct from the question of whether E is wise to marry.

(iii) In relation to her marriage the only question for the court is whether E has capacity to marry. The court has no jurisdiction to consider whether it is in E's best interests to marry or to marry S. The court is concerned with E's capacity to marry. It is not concerned with the wisdom of her marriage in general or her marriage to S in particular.'

All the parties in the case were also agreed that the marriage was valid according to Sharia law and the law of Bangladesh. It was also accepted in the lower court that, as a matter of law, the marriage, although conducted over the telephone, had taken place in Bangladesh.

Questions for the court

The questions to be determined by the Court of Appeal were as follows:

1. Whether the marriage was valid and entitled to recognition in English law.

2. Whether the Court's Inherent Jurisdiction survived the introduction of the Mental Capacity Act 2005.

3. Whether the court could prevent IC leaving this jurisdiction.

Decisions of the Court of Appeal

1. The marriage will not be recognised as a valid marriage:

(a) The Dual Domicile Rule

The first reason the Court of Appeal gave for refusing to recognise the marriage was that under English law, a man and a woman from two different jurisdictions can only enter into a valid marriage when both have the capacity to enter the marriage according to the law of their respective domiciles ('the dual domicile rule').

Lord Simon of Glasedale in his speech in Vervaeke v Smith [1983] 1 AC 145, at 165'“166 suggested that a marriage falling foul of the dual domicile rule might be recognised as valid 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'.

Wood J at first instance, and their Lordships in the Court of Appeal, held that the dual domicile rule was a rule of general application and was not limited to those cases in which the marriage was prohibited in the jurisdiction of the domicile of one of the parties (X City Council v MB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 approved).

Notwithstanding the general application of the dual domicile rule, the court held that it was the intention of IC's parents that he and NK should make their home in England. The Court therefore decided that were either of the alternative tests to be applied, these exceptions would not alter the position that the relevant law would still be English law, under which the marriage would not be entitled to recognition due to IC's incapacity.

Matrimonial Causes

(b) The Matrimonial Causes Act 1973

The Court of Appeal did however conclude that Wood J had wrongly rejected submissions founded on s 12(c) of the Matrimonial Causes Act 1973 and the binding judgment in Re: Roberts deceased [1978] 1 WLR 653 CA, which designates a marriage that has been celebrated without the valid consent of one of the parties 'voidable' rather than 'void'. A void marriage is one which is as though it had never been. A voidable marriage remains valid up until the time it is annulled by a decree of nullity. Sections 55 '“ 58 of the Family Law Act 1986 itemise the declarations as to marital status which a court may make. The first of these is 'a declaration that the marriage was at its inception a valid marriage'. The Act does not however permit a declaration that the marriage was at its inception an invalid marriage and indeed s 58(5) states:

'No declaration may be made by any court, whether under this part or otherwise: (i) that a marriage was at its inception void;'

This, it was argued on behalf of KC and NNC, left the only route to declaring the marriage void at its inception to be a petition for nullity. Representations on behalf of the Official Solicitor stressed that, although in this instance there was little doubt that an application for a decree of nullity would be successful, this left other vulnerable adults who lacked capacity in the deeply regrettable position of having to bring a decree of nullity petition to nullify a marriage that they had not consented to.

The Court of Appeal rejected the argument that the marriage was merely 'voidable' and therefore in existence by approving Wood J's introduction of public policy considerations. The mere fact that, as a matter of domestic law, a marriage celebrated abroad is voidable rather than void did not, in the court's view, entitle it to recognition as a valid foreign marriage under English law.

The Court of Appeal held that not every marriage that was valid according to the law of a foreign state was entitled to recognition in England and Wales, and there was expert evidence in this case to suggest that the marriage was potentially highly injurious to IC. Furthermore, were NK to engage in physical intimacy with IC she would be guilty of rape or sexual assault under the Sexual Offences Act 2003 given IC's inability to give valid consent.

Accordingly the court also did not accept the arguments of KC and NNC that actions of the local authority in opposing the marriage constituted breaches of IC's human rights under Art 8 (the right to respect for private and family life) or Art 12 (the right to marry) of the ECHR.

2. The courts' inherent jurisdiction does survive the Mental Capacity Act 2005 (MCA)

The unusual argument put on behalf of the parents of IC, that the MCA was intended to, in effect, completely replace the courts' inherent jurisdiction were dismissed by the Court of Appeal. Thorpe J approved the decision of Munby J in Local Authority X v MM & KM [2007] EWHC 2003 (Fam) which indicated that the inherent jurisdiction was not excluded by the MCA, while Wall J stated:

'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. [para 54].'

3. The courts can prevent an incapacitated adult leaving this jurisdiction if it is in their best interests

Again the arguments on behalf of the parents of IC were dismissed by the Court of Appeal. Within the MCA itself,

s 17(1)(a) states:

'The powers under s 16 as respects P's personal welfare extend in particular to '“ (a) deciding where P is to live;'

Thorpe J therefore concluded:

'In my judgment that clearly empowers the judge to prevent an exeat to Bangladesh where, as some of the evidence here suggests, it would be contrary to the health and welfare of the vulnerable adult.' (para 13)

He also concluded that the approach taken by Wood J in the High Court to considering best interests was not open to criticism and that he had suggested a cautious approach with concern not to interfere with IC's Art 8 ECHR right to a family life.

Telephonic marriage

It was agreed between the parties following expert evidence that the telephonic marriage would be deemed to have taken place in Bangladesh. Doubt was cast upon this conclusion by Thorpe LJ noting:

'Some foreign authors suggest, in the case of proxy marriages, that it should be regarded as celebrated in both countries, thus requiring compliance with the formalities of each: Rabel, Conflict of Laws, 2nd ed 1958, vol 1, pp 243'“4.'

'In this court there was no investigation nor any argument as to the place of celebration. I would not wish to be taken to endorse whatever consensus was reached between the parties to the effect that the marriage was celebrated in Bangladesh.

The important questions of law and public policy which arise must be left for decision in a case in which they arise and in which there is adequate evidence of the foreign law relating to the incidents of the marriage ceremony.' [Para 41 and 42].

Conclusion

The case of IC illustrates that there is no such thing as a simple legal question '“ Does IC have the capacity to marry? In our culturally diverse society, with issues arising from foreign laws and practices, the application of the English law has required the courts to meet the clash of cultures head on. The use of public policy under the inherent jurisdiction of the court, where the statute did not provide protection, is rare but effective.

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