Recognising marriages in non-recognised jurisdictions: MM v NA

As we noted briefly in Sunday’s round-up, MM v NA (Declaration as to Marital Status) [2020] EWHC 93 (Fam) was about recognition of a marriage contracted abroad.

Background

The couple had married in the Republic of Somaliland in 2012 in a religious ceremony, in a further ceremony attended by family and friends, and finally by registration in the local district court in Hargeisa [1]. They had what Roberts J described as “a very happy and settled relationship” [2] and they regarded themselves as husband and wife. They were prepared to undergo a further civil ceremony in this country, but the local registrar took the view that they could not do so because they might already be married to one another [2].

The problem was that at the time the couple registered their marriage at the district court in Hargeisa, the Republic of Somaliland was not recognised by the United Kingdom as an independent legal jurisdiction [3] – so the issue arose as to whether or not, in those circumstances, they could be regarded as married under the law of England and Wales.

The issues before the Court were these:

“(i) Are the parties validly married? If the answer to that question is no, the declaration cannot be granted. If the answer is yes, the court must then move onto the second question.

(ii) Is the marriage entitled to recognition in England and Wales? If the answer to that question is no, the declaration cannot be granted. If the answer is yes, the declaration can, and should, be granted” [4].

The judgment

Roberts J explained that, under English law, formal validity was regulated by the domestic law of the country where the marriage is celebrated: the lex loci celebrationis. Validity or capacity fell to be considered in the light of the domiciliary laws of the individual parties at the time of the marriage [7]. The Foreign & Commonwealth Office had confirmed that it would not object to the recognition of a Somaliland marriage in a UK civil law case “on the basis that the United Kingdom does not recognise Somaliland as a state” [10] and that it did not wish to intervene in the proceedings [11]. On the evidence before her, the parties were validly married according to the law of Somaliland [15].

As to whether the marriage was entitled to recognition under the law of England & Wales, “In the normal course of events, a marriage which is valid according to the law of the place where it was celebrated or performed will be entitled to recognition as a valid marriage under English domestic law [17].

The issue was “whether recognition follows in the case of a State which is not recognised by Her Majesty’s Government” [18]; and recognition was “the prerogative of the sovereign, acting through her government. Once a decision has been taken it becomes a ‘fact of state’ and must be acted on by courts accordingly” [19]. It was a principle of English law that the Court could not take cognizance of a foreign juridical person (or its acts) if to do so would involve it in acting inconsistently with the foreign policy or diplomatic stance of the Government of the United Kingdom [20] and that the acts of a government of an unrecognised state cannot be recognised by an English court [22].

Nevertheless, Steyn J had held at first instance in Gur Corporation v Trust Bank of Africa Ltd [1987] 1 QB 599 at 605E that “One qualification of the general principles may be the necessity for English courts to take cognisance of governmental acts of unrecognised states which directly affect family or property rights of individuals” – and that statement had been left undisturbed on appeal [22]. Furthermore, in Hesperides Hotels Ltd and Anor v Aegean Turkish Holidays Ltd and Anor [1978] 1QB 205 at 217G-218G, Lord Denning MR had supported the view that non-recognition did not prevent the courts from looking at the state of affairs in an unrecognised territory,

“to see what is the law which is in fact effective and enforced in that territory, and to give such effect to it – in its impact on individuals – as justice and common sense require: provided always that there are no considerations of public policy against it” [28].

There was further support from the 1971 advisory opinion of the International Court of Justice in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) of 21 June 1971, in which the Court had stated at paragraph 125 that:

“In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory” [emphasis added].

Roberts J concluded as follows:

  1. There was no question of the UK Government having specifically reserved to itself the right to determine what legal or executive acts could or could not be undertaken by the authorities in Somaliland: it has simply withheld formal recognition of Somaliland as an independent state [65];
  2. There was “a wealth of authority” confirming the existence of an exception to the non-recognition principle in the case of private and family rights [66];
  3. She was satisfied that “marriage and its creation as a legal status falls within the category of ‘private rights’ which the exception has embraced in the authorities to which I have referred above” [67]; and
  4. A refusal to recognise the validity of this marriage “would represent something of a legal anomaly” and mean that the English courts would be significantly out of step with other jurisdictions in terms of private international law” [68].

She therefore granted the declaration sought [70].

As to whether or not it was necessary to examine the human rights implications of non-recognition under Article 8 ECHR, she concluded – in remarks that she described as “strictly obiter” [71] – that it was not. In the event of a refusal to recognise the marriage, the parties could present themselves to a local Registrar together with the appropriate declaration of non-validity and be married in a civil ceremony [73].

Cite this article as: Frank Cranmer, "Recognising marriages in non-recognised jurisdictions: MM v NA" in Law & Religion UK, 10 February 2020, https://lawandreligionuk.com/2020/02/10/recognising-marriages-in-non-recognised-jurisdictions-mm-v-na/

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