Judge: High Court (Family Division) (Mostyn J)
Citation:  EWHC 224 (Fam)
In this case Mostyn J considered – and refused – an application for a declaration under the inherent jurisdiction that NB’s Pakistani marriage to her husband MI was not valid as a marriage in this jurisdiction and thus, with the court’s grant of a necessary extension of time, annulled.
The judgment is effectively in two parts. The first is an analysis and determination of NB’s case. The second, from paragraphs 43 to 100, following which the court returns, briefly, to NB’s case, is more of a treatise on the law of marriage and the power of the court – or lack thereof – to declare that a marriage was void at inception.
As to the first half, NB was, at the time of the hearing, a young woman in her early thirties of a “Pakistani family, resident in England.” In 1995 aged 6 she was involved in a car accident as a result of which she suffered a “catastrophic brain injury” resulting in mental health difficulties and an impairment of cognitive functioning. A damages claim was settled for a large sum, and the money managed by a Deputy.
Interestingly – and very encouragingly – by 2019 NB was considered to have regained capacity such that her Deputyship was discharged: she was considered able to manage her property and affairs.
The application concerned NB’s marriage which she had entered into in 2013 in Pakistan with MI. MI, having consummated the marriage and spent a number of weeks with NB in Pakistan shortly thereafter had otherwise been entirely absent from the marriage, living in Dubai, and apparently demonstrating little interest in pursuing a “married life” with his wife.
Mindful of her significant assets as a result of her personal injury award, NB brought an application to court for a declaration either that the foreign marriage should not be recognised or that it should be annulled. MI did not respond to the application. The court set out the nature of the application thus:
These are the questions that fall for determination:
iii) Should time be extended under s.13(4) of the Matrimonial Causes Act 1973 to permit the applicant’s nullity petition to be heard? (paragraph 9)
What follows in the judgment is a consideration and clarification of the – somewhat out of date – case law on marriage, much of which still derives from Munby J’s Sheffield City Council v E  EWHC 2808 (Fam),  Fam 326 which is now of course almost 20 years old. Mostyn J considers the evolution of modern marriage, the fact that many marriages, both historically and now, do not concern either procreation or indeed sex, and that many do not involve cohabitation. He specifically doubts the judgment of Parker J in London Borough of Southwark v KA and Others  EWCOP 20 at paragraph 76, suggesting that capacity to enter into sexual relations is a requirement for capacity to marry, observing at paragraph 15:
It is possible to envisage a person lacking the mental and physical capacity to choose to engage in sexual relations, perhaps as a result of traumatic injury, but who nonetheless has full capacity to take a wife. Similarly, a couple may marry and live together tanquam soror vel tanquam frater (as sister and brother – see below). In X City Council v MB, NM and MAB Munby J at  helpfully reminded us of Briggs v Morgan (1820) 3 Phill Ecc 325 at 331-332, where Sir William Scott said it may be that a marriage “at a time of life when the passions are subdued” is “contracted only for comfortable society”, the spouses being “fairly left to just reflection and more placid gratifications”. Needless to say, these are all perfectly valid marriages.
Gathering together the existing case law, Mostyn J set down a set of “straightforward propositions”, namely:
iii) While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together; the one is not conditional on the other.
vii) There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.
viii) Although most married couples live together and love one another this is not of the essence of the marriage contract.
Accordingly, while two out of the three capacity reports considered that NB lacked the requisite capacity to enter into a marriage in 2013, Mostyn J preferred the evidence of the sole expert who concluded that she possessed it.
Mostyn J observed that NB was asked what ramifications of the marriage she did not understand and her reply was she did not understand their financial differences; how the respondent would live here; what work he would do; or whether he would be prepared to sign a prenuptial agreement. However, he determined (at paragraph 35):
In my judgment the law does not impose on this applicant a requirement to be able to understand the full ramifications of marriage and specifically the question of where her husband might choose to live, or his involvement in the management of her damages. The fact that she might find it distressing to spend less time with her family while her husband to come to England says nothing at all about her capacity to consent to marriage…..
Accordingly, he refused to grant the applications sought albeit that he sought to give some comfort to the applicant by concluding his judgment with observations to the effect that, in the event she were to pursue divorce proceedings,
the prospects of the respondent succeeding in a claim for ancillary relief is vanishingly remote. The award of damages to the applicant was calibrated by reference to her needs, and compensation for her pain and suffering. This marriage never functioned as a marriage and accordingly I find it impossible to conceive of any circumstances, even were the respondent to suffer grave hardship, where he could mount a plausible claim against the applicant (paragraph 112).
In the second half, provided in the event “a higher court disagrees with my primary finding” (paragraph 42) and therefore and strictly obiter, Mostyn J goes on to provide a fascinating history of the evolution of the law of marriage throughout the twentieth and early twenty-first century – dipping back to the seventeenth century as necessary.
Mostyn J’s key concern was the practice of the court in seeking to avoid the statutory prohibition s.58(5)(a) of the Family Law Act 1986 that “No declaration may be made by any court, whether under this Part or otherwise – that a marriage was at its inception void.” The judgments in KC & Anor v City of Westminster Social & Community Services Dept. & Anor  EWCA Civ 198 and Re RS (Capacity to Consent to Sexual Intercourse and Marriage)  EWHC 3534 (Fam) both come for criticism in this regard: only Holman J in A Local Authority v X & Anor (Children)  EWHC 3274 (Fam) is applauded for his refusal to grant the application sought – as Mostyn J observes (at paragraph 79):
A different, and to my mind more principled, approach was taken by Holman J in A Local Authority v X & Anor (Children)  EWHC 3274 (Fam). This was a similar case where a local authority sought, pursuant to the inherent jurisdiction, a declaration of non-recognition of the marriage in Pakistan of X, a girl then aged 14. Although that marriage was valid under the laws of Pakistan, it was completely invalid, and void ab initio under English law on the ground of non-age: s.11(a)(ii) Matrimonial Causes Act 1973. Holman J refused the application stating: “I would be bypassing and flouting the statutory prohibition in section 58(5) of the 1986 Act by a mere device. I cannot do that and I am not prepared to do that.” He held that there was nothing to prevent X petitioning for a decree of nullity.
Hayden J, in contrast, is criticised for the approach adopted in Re RS (Capacity to Consent to Sexual Intercourse and Marriage)  EWHC 3534 (Fam), a case concerning a 24-year-old man, who suffered from intellectual disability and autism spectrum disorder, who was married in Pakistan. The marriage was valid under the laws of Pakistan. The evidence was that he could not validly consent to the marriage in consequence of unsoundness of mind. Accordingly, it was an invalid, albeit voidable, marriage under s.12(1)(c) Matrimonial Causes Act 1973. Hayden J, however, accepted submissions made on behalf of the local authority that as a marriage that could not lawfully have been conducted in England, it could be declared void at the time of its inception on the grounds of public policy and in “the interests of justice, fairness and respect for different aspects of individual autonomy” (paragraph 52). Mostyn J, deprecating this approach, held:
Even Sir James Munby does not escape criticism. The decision in X City Council v MB, NM and MAB  EWHC 168 (Fam),  2 FLR 96, again concerning a marriage of a 25 year old who undoubtedly lacked capacity to marry but whose parents wished him to marry in Pakistan. In that case Munby J (as he then was) made two declarations:
Mostyn J observed:
I do not dispute the existence of the general power not to recognise, exceptionally, an unconscionable right, power, capacity, disability or legal relationship arising under the law of a foreign country. However, in a case where the statutory prohibition applies, the exercise of this power, if not in fact blocked by the prohibition (see above), must be very highly exceptional…
In the second half of the judgment which, as we noted, is obiter, Mostyn J was ultimately primarily concerned less with the conclusions the courts reached in the majority of these cases rather, the manner in which they reached them. Much of this (lengthy) judgment might therefore be of academic rather than practical interest. It is, however, extremely helpful in its elucidation and updating of the position with regard to capacity to marry, and the issue as to whether capacity to enter into sexual relations is a requirement for capacity to marry is an issue where there is now a frank (live) dispute between different High Court judges.