Court of Appeal

Published April 3, 2008

Westminster City Council v IC and Others

Before Lord Justice Thorpe, Lord Justice Wall and Lady Justice Hallett

Judgment March 19, 2008

A judge did not have jurisdiction to make a declaration that a marriage based on lack of consent was not valid under English law, since such a marriage was voidable and not void ab intitio; the judge should have declared that the marriage was not recognised as a valid marriage in this jurisdiction.

The Court of Appeal so held in a reserved judgment in granting permission to appeal to the parents of IC, a severely disabled man aged 26, acting by his litigation friend, the Official Solicitor, and allowing the appeal to the limited extent that the declaration made by Mr Justice Roderic Wood ([2007] EWHC 3096 (Fam)), that the marriage of IC and his bride was not valid under English law, should be substituted by a declaration that the marriage, although valid according to the law of Bangladesh, was not recognised as a valid marriage in this jurisdiction.

Mr Jan Luba, QC and Mr Stephen Knafler for the parents of IC; Mr Alex Verdan, QC for the local authority; Miss Alison Ball, QC and Mr Andrew Bagchi for IC.

LORD JUSTICE THORPE said that the family at the heart of the appeal were British nationals domiciled and habitually resident in this jurisdiction. However, the family was of Bangladeshi origin and only IC was born in this country.

IC was born on October 11, 1981 and suffered from severe impairment of intellectual functioning and autism. He needed considerable support in all areas of his life and could not be left alone without risk. He received home care five mornings a week before he attended a day centre. The local authority had been involved in supporting and protecting him since he was four years old.

The role of marriage in the life of one so handicapped was inconceivable in our society.

Furthermore, as a matter of law marriage was precluded, since IC lacked the fundamental capacity to marry. However, the marriage was not precluded in Bangladesh.

The local authority raised the issue of marriage with IC’s parents in the autumn of 2006. There was no agreement that IC could not and should not ever marry and so the local authority applied under the inherent jurisdiction of the High Court for a declaration was to IC’s capacity to marry. IC’s parents responded that IC had married in a Muslim ceremony by telephone.

In his Lordship’s judgment, the judge had been wrong to reject submissions on behalf of IC’s parents founded on section 12(c) of the Matrimonial Causes Act 1973 that the marriage was voidable.

The judgment and reasoning in In re Roberts, deceased, Roberts v Roberts ([1978] 1 WLR 653) was clear and binding. His Lordship was reinforced in that view by a relevant provision that was not drawn to the attention of the judge, namely sections 55 to 58 of the Family Law Act 1986.

Section 55(1) itemised the declarations as to marital status which the court could make. What was significantly absent was any provision permitting a declaration that the marriage was at its inception an invalid marriage.

The only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. Had the judge had his attention drawn to the provisions of the 1986 Act his Lordship did not think that he would have made the declaration that he did.

In this court there was no investigation nor any argument as to the place of celebration. His Lordship would not wish it be taken to endorse the consensus reached between the parties to the effect that the marriage was celebrated in Bangladesh.

Lord Justice Wall delivered a concurring judgment and Lady Justice Hallett agreed.

Solicitors: Bennett Wilkins; Creighton & Partners, Westminster; Irwin Mitchell.

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