Bethany Brown, Lecturer, NLS https://www.ntu.ac.uk/staff-profiles/law/bethany-brown
In England and Wales marriages may come to an end in one of two ways. Divorce, which dissolves a valid marriage and Nullity, which applies where there were defects in the formation of the marriage. Sometimes, the defects are so serious that the marriage is wholly void, and never comes into being (although a court may be asked to confirm that this is the case). On other occasions the marriage is merely voidable, and will exist unless and until it is set aside by judicial process. It should be noted that both void and voidable marriages trigger the same possibilities for financial relief and distribution of property as apply on divorce.
Of the two methods of termination, divorce is better known and of wider application. The law governing divorce has recently seen some radical modernisation with the enactment of the Divorce Dissolution and Separation Act 2022, which introduced key changes to the legal regime. In contrast, the law of nullity did not receive a comparable overhaul, and is arguably in need of significant change to reflect the contemporary context.
As discussed above, nullity covers both void and voidable marriages. In the case of voidable marriage, Section 12 of the Matrimonial Causes Act 1973 provides for eight different grounds, for example, where the marriage has not be consummated owing to the incapacity of either party to consummate it (Section 12(1)(a)) or the wilful refusal of the respondent to consummate it (Section 12(1)(b)). Nullity proceedings are generally preferred by those with who have cultural or religious reasons for opposing divorce or dissolution of marriage. It is perhaps surprising a lack of valid consent from one or both parties with render a marriage voidable, rather than void, even where the situation is one of forced marriage (see s12(1)(c).
Valid consent is, of course, dependent upon the parties having capacity to understand and process their decision. Therefore, one of the key requirements for a marriage to be valid is the parties are able to give meaningful consent. In the case of X City Council v MB, NB and MAB (By His Litigation Friend the Official Solicitor) [2006] 2 FLR 968, Munby J (as he then was) made a declaration, that in the event a person lacked capacity to marry, “Any purported marriage … will not be recognised in English law”.
The complication is that sometimes a person lacking capacity may not perceive the marriage as problematic, or even be fully aware of it. In such cases, the individual may need the court’s protection, but not be able, and/or inclined, to apply to the court for nullity proceedings. This means that the statutory law of nullity cannot be invoked to provide an appropriate response. What then, might the alternatives be?
One possibility is to invoke the inherent jurisdiction as a means of ending the marriage, and effectively side-stepping the law of nullity. The inherent jurisdiction is a Common Law doctrine that grants superior courts power to hear any issue that comes before them, unless either statute or a rule of Common Law prevents them from doing so. An often cited and important example of the inherent jurisdiction is its invocation as a last resort to protect minors when other legal mechanisms are unavailable, for instance in the context of orders relating to medical treatment.
Use of the inherent jurisdiction in relation to vulnerable adults and marriage is contingent on concluding that the Matrimonial Causes Act 1973 (as amended) and its provisions on nullity have not extinguished the power A recent decision by Moylan LJ in SA (by her Litigation Friend, the Official Solicitor) (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003, 2023 WL 05598472 confirmed that the inherent jurisdiction does remain available in such cases. The court ruled that: 1) nothing in the statutory framework ousted its jurisdiction; and, 2) that a situation of this nature satisfied the threshold for invoking the inherent jurisdiction. It is well established that this residual power should only be applied in “exceptional circumstances” and Moylan LJ expressly found that a purported marriage involving someone with significant intellectual impairment does indeed qualify as “exceptional circumstances”.
In SA, proceedings were commended by West Northamptonshire Council who applied for a forced marriage protection order under Part 4A of the Family Law Act 1996 in respect of the Wife. The Council also sought declarations regarding her capacity. The wife was domiciled and lived in the England before her mother took her to marry her husband, her cousin, in Bangladesh where he lived and was domiciled.
Following applications by the local authority, Newton J held that the wife lacked capacity to consent to marry and she had been forced into the marriage. At this stage she had already married the husband and was in Bangladesh. The wife was described by experts as being “unable to shower” alone and being “suggestible” with “no ability to resist how she was being steered by others”. Newton J granted a forced marriage protection order and a declaration under the inherent jurisdiction that the marriage was not recognised in England and Wales.
However, the wife and her mother wanted the marriage to continue, and no nullity petition was issued. The wife’s mother appealed on the basis that:
1 – The court was wrong to make the declaration because the inherent jurisdiction should not be used to bypass the effect of Sections 55 and 58 of the Family Act 1986 (these sections specify what declarations a court can make about marital status); and
2 – The inherent jurisdiction to make a declaration of non-recognition of marriage can only be used “on exceptional public policy grounds” and this case was “unexceptional”.
The wife’s mother sought to argue that Parliament had made public policy choices as reflected in the Family Law Act 1986 and in Section 12(1)(c) of the Matrimonial Causes Act 1973. The relevant sections which the wife’s mother sought to rely on were Section 55 and Section 58 Family Law Act 1986. Section 55 provides “any person” may apply to the High Court or the Family Court for a declaration in relation to a marriage provided they satisfy at least one of the criteria contained within Section 55(1). Section 58 sets out general provisions as to the making and effect of declarations. Neither of these sections provided for the circumstances in the current case, meaning that third parties were not permitted to make an application in respect of the marriage
The wife’s mother’s argued that it could be inferred from the fact that these provisions had not been amended, that the relevant public policy considerations remain the same as they were in the 1970s and 1980s. . Consequently, the remedy provided by Parliament for a voidable marriage is a nullity petition, which was an application that the wife did not wish to pursue. The mother further sought to rely on Mostyn J's obiter commentary in NB v MI [2021] EWHC 224 (Fam) which questioned the conclusion in Westminster City Council v C [2008] EWCA Civ 198, where it was found that the inherent jurisdiction was available to make a declaration of non-recognition of a voidable marriage.
The appeal from the wife’s mother was dismissed, and Moylan LJ held that the Family Law Act 1986 does not prohibit the court from making a declaration of non-recognition in respect of a voidable foreign marriage. Moylan LJ noted that voidable marriages are not expressly considered under Sections 55 and 58 of Family Law Act 1986. He noted particularly that Section 55(1)(e) provides for declarations about the non-recognition of foreign divorces, but not foreign marriages. Section 58(4) relates to declarations expressly included in Family Law Act 1986. The key provision for Moylan LJ was Section 58(5)(a). This provides that a declaration cannot be made that a marriage is void at its inception. Voidable marriages are by definition not void ab initio, but enjoy legal existence until set aside, meaning that Section 58(5)(a) does not apply to them.
Moylan LJ further referred to the Law Commission report, Declarations in family matters (Law Com No 132).. This report led to the enactment of Family Law Act 1986, and it is clear that both the Law Commission and Parliament intentionally made void marriages their exclusive focus.
As a result, Moylan LJ was able to use the inherent jurisdiction to plug a gap left by, arguably, inadequate legislation. In this instance the Court was able to find that the wife's circumstances fit into the 'exceptional' public policy grounds criteria. Therefore, despite the fact that the court was unable to offer any other remedy under statutory regime, Moylan LJ was able to utilise inherent jurisdiction to declare the foreign marriage voidable, and therefore protect the vulnerable wife. However, this raises two questions: should the judiciary have to bridge the current gap in legislation to protect the vulnerable? And secondly, what happens when a case arises in the future which cannot be understood as 'exceptional'? To avoid circumstances like this in the future, legislative reform is needed to ensure an effective remedy for vulnerable persons and to further avoid potentially controversial legal gymnastics.
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