Marriage and validity and ‘subsisting’

Free Movement — 

A couple of cases on marriage were recently decided in the Family Division and are worth reporting here as they could have a bearing on immigration cases where the validity of a marriage is significant in some way. The first of the cases might also be relevant to defining ‘subsisting marriage’ under the Immigration Rules.

In Galloway v Goldstein [2012] EWHC 60 (Fam) Mostyn J starts by setting out the background:

The background to this application reveals the existence of a phenomenon which is by no means uncommon. The Applicant, whom I shall refer to as the husband, is English and the Respondent, whom I shall refer to as the wife, is American. They were married in the presence of witnesses only in Connecticut on 29 April 1999. However, they wished there to be a larger ceremony at which their family and friends could attend. Rather than arranging for some kind of ceremony of blessing, they in fact went through a second ceremony of marriage on 30 May 1999 at a hotel in England which was attended by family and friends and, no doubt, followed by a wedding party. That second ceremony resulted in the parties’ marriage being registered at the General Register Office of England and Wales.

…Quite often parties marry abroad but wish to have a grander ceremony here and therefore go through a second actual marriage ceremony. It is highly undesirable because the second marriage ceremony must result in false representations being made to the Registrar of Marriages. Formal representations need to be made to the Registrar of Marriages, I believe to be verified on oath, that neither of the parties is already married and of course it is a fact that, by the words of the ceremony itself, the parties have to declare that they know of no lawful impediment why they should not be married. That must have happened here and those representations must have been false because of course, at the relevant time, they were already married to each other. They are not false representations with any social consequence as they affect only themselves, but nonetheless the marriage laws of this country are there to be obeyed and it is highly regrettable that in this case – and I believe it is likely to have happened in other cases – false representations should have been made in order to satisfy the social wishes of the parties. Better, I suggest, it would have been for them to have arranged for a non-legal, non-formal ceremony of blessing of their prior union in Connecticut on 29 April 1999.

There are probably quite a few couples out there in a similar position, where a marriage that is effective in private international law terms is contracted in one country (see relevant post on this here) but then contracted again in another. As is usually the case in the family courts, the question becomes what happens when it all goes wrong later. In this case the marriage(s?) broke down and a divorce settlement was reached in Connecticut. However, one of the parties became anxious that the Connecticut settlement would not be effective in respect of the English marriage. That party applied for an order under s.55(1)(c) of the Family Law Act 1986 that the English marriage did not ‘subsist’ after the Connecticut divorce.

Free Movement is not aware of the immigration tribunal previously drawing on this section to illuminate the meaning of the ‘subsisting marriage’ requirement at paragraph 281(iii) of the Immigration Rules. It matches much more closely with the view of the tribunal expressed in BK and Others (Spouses: Marriage-meaning of ‘subsisting’) Turkey [2005] UKAIT 00174 than in the later, probably incorrect, starred case of GA (“Subsisting” marriage) Ghana [2006] UKAIT 00046. See this recent post for the latest immigration case law on marriage cases, though.

Returning to Galloway v Goldstein, Mostyn J concludes that the English ‘wedding’ was no such thing and was mere charade or play acting of no legal effect whatsoever. A decree of nullity was not possible and an order under s.55(1)(c) could be (and was) made but was unnecessary. He expresses the hope that other couples in a similar situation can point to this judgment rather than seeking similar orders in future.

El Gamal v Al Maktoum [2011] EWHC B27 (Fam) involved an application for a nullity petition in respect of a marriage contracted in an Islamic marriage ceremony by an Imam in a flat in London. One of the issues was whether the marriage was a ‘non-marriage’ totally outside the statutory framework or was one that had been valid but was potentially void. Bodey J reaffirmed his conclusion in the earlier case of Hudson v Leigh [2009] 2 FLR 1129 that cases had to be decided on their own facts:

Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage [under English law]; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar considerations should enable a decision to be satisfactorily reached.

On the facts of the particular case Bodey J concluded that nothing was done by the parties to show an attempt to be part of a ceremony set up to or purporting to comply with the formal requirements of English law and therefore no decree of nullity could be made. The marriage was in truth a non-marriage.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.