In NB v MI [2021] EWHC 224 (Fam), Mostyn J set out a series of propositions on the legal nature of marriage in England & Wales.

The application before him was for a declaration of non-recognition of a Muslim marriage pursuant to the inherent jurisdiction of the High Court and a petition for nullity. The parties had entered a valid marriage in Pakistan on 1 June 2013. The applicant was a Muslim of Pakistani heritage, resident in England; the respondent, a Pakistan national currently working in Dubai, did not attend the hearing and was not represented. [1 & 2]. Since their wedding, the parties had spent very little time together and were “irretrievably estranged” [7]. The applicant had come under pressure from her family to reconcile with the respondent. She had travelled to see the respondent in April 2018 to explore the possibility of reconciliation but told the Court that they had both agreed that the marriage was at an end and she understood that the respondent planned to remarry although she was unaware of any attempts by him to divorce her [7].

There were three questions before the Court: (i) Did the applicant lack capacity to consent to marry on 1 June 2013? If yes: (ii) Did the court have power under its inherent jurisdiction to declare that the marriage between the applicant and the respondent, valid according to the law of Pakistan, was not recognised as a valid marriage in this jurisdiction, and if so, should the power be exercised? (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?

After discussing the case-law on such matters as the nature of marriage, capacity to marry, capacity to engage in sexual relations, Mostyn J set out “some straightforward propositions” at [26]:

“(i) The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.

(ii) Marriage is status-specific not spouse-specific.

(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.

(iv) A sexual relationship is not necessary for a valid marriage.

(v) The procreation of children is not an end of the institution of marriage.

(vi) Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other’s society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.

(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.

(ix) The wisdom of a marriage is irrelevant.”

The irreducible mental requirement was that a putative spouse must have the capacity to understand, in broad terms, that marriage conferred on the couple the status of a recognised union which gave rise to an expectation to share each other’s “society, comfort and assistance” [27]. It was not necessary for a person getting married to have an awareness of the detail of the financial consequences of the union. Nor did marriage impose a duty to cohabit, to engage in sexual relations or to procreate: “Modern marriage has moved on a long way from the days when canon law ruled the legal roost” [28].

As to the nullity petition, Mostyn J found on the facts that on 1 June 2013 the applicant had the capacity to consent to marriage, had consented to be married and had thereby formed a valid marriage with the respondent under Pakistani law which was entitled to be recognised in England and Wales [40]. Accordingly, her plea that she lacked the capacity to consent to marriage was not proved and the application and the petition were dismissed.