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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> El Gamal v Al Maktoum [2011] EWHC B27 (Fam) (22 December 2011) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2011/B27.html Cite as: [2011] EWHC B27 (Fam) |
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FAMILY DIVISION
B e f o r e :
B E T W E E N :
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NIVIN EL GAMAL | Applicant | |
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HRH SHEIKH AHMED BIN SAEED al-MAKTOUM | Respondent |
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MR. M. POINTER QC and MR. M. GLASER (instructed by) appeared on behalf of the Respondent.
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Crown Copyright ©
MR. JUSTICE BODEY:
A INTRODUCTORY
B THE PSYCHIATRIC EVIDENCE REGARDING THE MOTHER
C THE CHRONOLOGICAL BACKGROUND
D THE MOTHER'S TEXT MESSAGES TO THE FATHER
E DISCUSSION AND CONCLUSION ON THE FIRST ISSUE: WAS THERE A WEDDING CEREMONY?
F THE SECOND ISSUE: WHAT, IF ANYTHING, IS THE LEGAL EFFECT IN ENGLISH LAW OF THE ISLAMIC WEDDING CEREMONY? DID IT CREATE A VOID MARRIAGE OR NO MARRIAGE AT ALL?
" (a) it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986, that is to say where (3) the parties have intermarried in disregard of certain requirements as to the formation of marriage ".
" the Marriage Act 1949 is dealing throughout with marriages as known to and permitted by English domestic law It does not seem to the court that the provisions of the Act have any relevance or application to a ceremony which is not and does not purport to be a marriage of the kind that is allowed by English domestic law. That this was a ceremony under the Islamic law admits of no doubt but unless the 'marriage' purporting to be solemnised under Islamic law is also a marriage of the kind allowed by English law, it is not a marriage with which the Marriage Act 1949 is concerned What, in our judgment, was contemplated by this Act and its predecessors in dealing with marriage and its solemnisation and that to which alone it applies was the performing in England of a ceremony in a form known to and recognised by our law as capable of producing, when there performed, a valid marriage. For the Act to have any application to the ceremony, in our judgment, [it] must at least be one which will prima facie confer the status of husband and wife on the two persons."
" Unless a marriage purports to be of the kind contemplated by the Marriage Acts it is not, I hold, a marriage for the purposes of S.11 of the Matrimonial Causes Act 1973 It is clear that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal defects. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant, of a Superintendent Registrar's certificate, and it was conducted in a flat which was clearly none of the places which was authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts Nobody purported to conduct or take part in a Marriage Act 1949 ceremony, and the fact that no-one applied their mind to how the English law would view what they did does not alter that conclusion. It is not only a question of polygamy which ipso facto takes this ceremony outside s.11, but the fact that it in no sense purported to be effected according to the Marriage Acts, which provide for the only way of marrying in England."
" English law recognises the validity of a marriage conducted in an overseas jurisdiction if the ceremony complies with the requirements of that jurisdiction, even if it would not have complied with the nearest equivalent requirements which apply under the law of England. The other side of the coin is that if a ceremony which takes place in England is to create a relationship which English law will recognise as a marriage, it must comply with the formal requirements of English law. Those requirements are mostly contained in the Marriage Act 1949 If a man and a woman whose families originated abroad take part in this country in a ceremony which, by the traditions of their own community, would or might give rise to a lawful marriage but the ceremony does not comply with the Marriage Act 1949, they are not married in the eyes of English law."
He found that the ceremony "failed in multiple respects" to comply with the formal requirements of the Marriage Act 1949 and therefore was incapable of creating a marriage recognised as a marriage (not even a void one) under English law. He held that the alleged marriage was in law a 'non-marriage' because it 'purported to be a marriage according to a foreign religion' and made 'no attempt to be an English marriage within the Marriage Acts'.
"It is clear from the logic or lack of logic of the Marriage Act 1949 that a concept of non-marriage is necessary since a marriage conducted outside the framework of the Act can be neither void nor valid."
I concluded in Hudson v. Leigh that there exists a concept (in shorthand) of 'non-marriage' known to English law, it having been submitted to me that there was not. But I found it impossible to achieve any definition. I said in paragraph 79 that:
"Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage [I was referring to lawful under English law]; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached."
"I believed, both that the ceremony gave rise to a valid Islamic marriage and that a valid Islamic marriage was accepted as a valid marriage for the purposes of the law of England and Wales. I believed the father shared this belief and that we both believed that the ceremony gave rise to a marriage which was valid in the eyes of the secular law of this country."
He refers also to paragraph 17 of the same statement, where she states the belief that the Imam felt the same. Relying on these passages, he makes the submission that in this case the intention of the parties is the all important factor, converting a ceremony which failed to comply with the Marriage Acts into a marriage, albeit a void one, (void as a result of having so failed). This was a refrain of his submissions on the law, differentiating this case, he asserted, from the sort of case (like Hudson v. Leigh) where a ceremony may be performed and undergone when no-one intends that a marriage compliant with English law should be created.