Foreign Marriage Flashcards
Mark v Mark
Domicile of “origin” or of “choice” - which requires physical presence and intention to remain indefinitely/permanently (habitual residence requires physical presence and “settled intention to remain”, question of fact rather than of law)
City of Westminster v IC, KC and NN
man had intellectual capacity of three year old, his parents arranged for him to marry a Bangladeshi woman over the phone (was legal arrangement in Bangladesh). Had to decide on capacity, celebration (as to whether the telephone arrangement was allowed) and public policy. Held – while marriage would be valid in Bangladesh, IC lacked capacity under British law so the marriage would not be recognised as valid in England and Wales. Public policy reasons for refusal under s12 MCA.
Burns v Burns
Couple had ceremony in hot air balloon in California, marriage license was not obtained until afterwards. Held - validity not to be determined by lex fori, nullity decree was granted. Parties had intended to marry despite non-compliance with formalities, nowhere near a “non-marriage”.
Asaad v Kurter
Applicant (Syrian woman) had married Turkish man in Syria, invalid under Syrian law. There was a church ceremony with some sort of blessing. Was the marriage non-marriage under UK law? Once foreign law had determined it to be an invalid marriage, law of lex fori to decide implications. Decree of nullity.
Ismali v Choudhary
Series of marriages by W - third marriage potentially invalid under Sharia law as no Talaq divorce from first husband, and had been within prohibited period after divorce from second husband, based on amended registry record issued during proceedings. If invalid under Sharia law - not a foreign marriage capable of recognition in the UK. Remitted for rehearing. Court held that H had acquired a domicile of choice in England, failed to established he had divorced W by Talaq in UK or Pakistan.
Cheni v Cheni
Uncle-niece were married in Egypt, potentially polygamous at inception, became actually monogamous when child was born. Moved to England, petition for nullity. Court held they had no jurisduction as the marriage was potentially polygamous. Public policy test - when 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.
Mohammed v Knott
Nigerian man, 26, married 13 year old girl, valid in Nigeria. Moved to UK so he could study. Girl visited doctor for contraception, issue raised over her age. Would marriage be “repugnant to any decent minded English man or woman?”. Held in this case marriage was valid - merely carrying out her wifely duties did not expose girl to moral harm, consequences of finding it invalid would be very serious for her, and they were soon leaving UK. Decision of its time?
R (on the application of Quila and another) v Secretary of State for the Home Department
Both applications related to marriages where one party was under the age of 21, held that the immigration rules did breach Article 8, was intended to deal with forced marriages but “caught” consensual marriages too.
Baindail v Baindail
Woman domiciled in UK married Hindu man in Indian, subsequently discovered he had another wife in India, filed for nullity based on bigamy. Polygamy was legal in India, so marriage to English wife was valid in lex loci. H’s marriage to first wife was valid there so must be recognised in UK, as polygamy is not possible in UK, second marriage would be void.
Fatima
F came to UK from Pakistan to marry another Pakistani national. He had been married before and claimed that he had obtained a Talaq divorce, but immigration officer refused her entry due to problems recognising divorce.
AI v MT
Consent order was agreed following an arbitration carried out by rabbinical authorities. Both parties were observant orthodox Jews. Married in 200, 2 children. Agreed to enter ADR, would it be binding? No, but outcome would carry considerable weight. Would not depart from the welfare principle.
Hussain v Hussain
Concerned polygamy. Marriage taking place under a jurisdiction which permitted polygamy did not of itself mean that the marriage was polygamous and therefore void. Did either party have capacity, according to their respective domiciles, to contract a second marriage during the subsistence of the first? On the facts of this case - no.
McCabe v McCabe
Marriage contracted in Ghana was valid and capable of recognition in England even though the ceremony was not publicised and the parties were not present or represented by proxy. Essential elements under Ghanaian marriage = consent of the parties and family.
Hudson v Leigh
“Non-marriage” - religious ceremony in South Africa lacking formality.
Hyde v Hyde
English courts will not recognise polygamous marriages for the purpose of enforcing matrimonial duties or obtaining relief for a breach of matrimonial obligations.
