Re P (Appeal: Forced Marriage Protection Order: Jurisdiction)
[2023] EWHC 195 (Fam)
SA (Declaration of Non-Recognition of Marriage), Re
30 August 2023
[2023] EWCA Civ 1003
Court of Appeal
A woman with a learning disability was forced into marriage overseas. A court said the marriage isn't valid in the UK because it was forced. The appeal failed because UK law lets courts refuse to recognize forced marriages, even if the marriage is technically valid in another country. The court protected the vulnerable woman.
Key Facts
- •SA, a UK domiciliary with significant intellectual impairment, was forced into a marriage in Bangladesh with NU.
- •SA lacked capacity to consent to marriage and sexual relations.
- •NU is not a party to the proceedings.
- •The judge made a declaration that the marriage is not recognised in England and Wales and a Forced Marriage Protection Order (FMPO).
- •The appeal challenges the declaration of non-recognition, not the FMPO.
- •The appeal argues the inherent jurisdiction shouldn't bypass the Family Law Act 1986 (FLA 1986) and that exceptional public policy grounds are needed for such a declaration.
Legal Principles
The court has inherent jurisdiction to make a declaration that a marriage is not recognised as valid in England and Wales.
Westminster City Council v C and Others [2009] Fam 11
A forced marriage is a gross abuse of human rights and is utterly unacceptable.
Re K; A Local Authority v N and Others [2007] 1 FLR 399 and NS v MI [2007] 1 FLR 444
English courts will not recognise a foreign legal relationship inconsistent with fundamental English public policy.
Dicey, Morris and Collins, The Conflict of Laws, 16th Edition, Chapter 5, Rule 5
A marriage is voidable under s. 12(1)(c) MCA 1973 if either party didn't validly consent (duress, mistake, unsoundness of mind).
Matrimonial Causes Act 1973 (MCA 1973)
FLA 1986, s. 58(5)(a) prohibits declarations that a marriage was void at its inception.
Family Law Act 1986 (FLA 1986)
A nullity of marriage order for a voidable marriage only annuls the marriage from the date of the final decree (s. 16 MCA 1973).
MCA 1973
Outcomes
Appeal dismissed.
The court upheld the declaration of non-recognition. The FLA 1986 does not prohibit such declarations for voidable marriages; the judge correctly exercised his power based on public policy grounds given the forced nature of the marriage and SA's incapacity.