A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was void ab initio on the ground that the marriage was merely a device to obtain a British passport so that she could work as a prostitute without being deported and that the parties had no intention of living together. She then applied for a declaration in the English court that the Belgian decree was entitled to be recognised in England under the 1933 Act, and the bilateral convention between the UK and Belgium. She lost at first instance and in the Court of Appeal.
Held: Her appeal was dismissed. A marriage must be recognised as legally valid if the requirements of formality and capacity have been met irrespective of the intentions of the parties. The earlier English judgment created to an estoppel per rem judicatam which precluded reliance on the Belgian decree. Recognition of the Belgian decree should be refused on grounds of public policy:
Lord Hailsham of St Marylebone LC described the rule in Henderson v. Henderson as ‘both a rule of public policy and an application of the law of res judicata’ and said of it: ‘whatever the limits of Henderson v. Henderson (1843) 3 Hare 100 (which I regard as a sound rule in ordinary civil litigation) may ultimately turn out to be, I believe that it must apply to a case like the present, where the petitioner in the first proceedings not merely does not rely on the grounds then already in theory available to her, but deliberately conceals the real facts (on which she now relies) from the court in order to put forward a bogus case which is radically inconsistent with them.’
Lord Hailsham approved the statement by Ormrod J at first instance: ‘Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, e.g., a formal betrothal ceremony as in Kelly (Orse. Hyams) v. Kelly (1932) 49 T.L.R. 99 … or as in Mehta (Orse. Kohn) v. Mehta [1945] 2 All E.R. 690, a ceremony of religious conversion. In such cases the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing and such marriages are, therefore, void or perhaps voidable. On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about or unaware of some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community. Lord Merrivale in Kelly (Orse. Hyams) v. Kelly, 49 T.L.R. 99, 101 said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage of law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.’ See also the observations of Hodson J. in Way v. Way [1950] P. 71, 79, approved by the Court of Appeal in Kenward v. Kenward [1961] P. 124, 133 and Silver v. Silver [1955] 2 All E.R. 614.’
Lord Simon of Glaisdale said: ‘There is little authority for refusing, on the ground of public policy, to recognise an otherwise conclusive foreign judgment – no doubt because the conclusiveness of a judgment of a foreign court of competent jurisdiction is itself buttressed by the rule of public policy, interest republicae ut sit finis litium, the ‘commonwealth’ in conflict of laws extending to the whole international community.’ Our perceptions of public policy must at least be tested against perceptions elsewhere even if: ‘There appears to be no inherent reason why, giving every weight to the international spirit of the conflict of laws, we should surrender our own policy to that of any foreign society.’
Judges:
Lord Simon of Glaisdale, Lord Hailsham LC
Citations:
[1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855
Statutes:
Foreign Judgments (Reciprocal Enforcement) Act 1933
Jurisdiction:
England and Wales
Citing:
Appeal from – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited by:
Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.
Family, International
Updated: 29 May 2022; Ref: scu.219311