Asma Dukali (Applicant) Mohamed Lamrani (Respondent) HM Attorney General (Intervener)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLMAN |
| Judgment Date | 15 March 2012 |
| Neutral Citation | [2012] EWHC 1748 (Fam) |
| Docket Number | No: FD11F00696 |
| Court | Family Division |
| Date | 15 March 2012 |
[2012] EWHC 1748 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
No: FD11F00696
MR JOHN FOX (Instructed by Messrs Oliver Fisher) appeared on behalf of the Applicant
MR PHILIP PERRINS (Instructed by David du Pré & Co) appeared on behalf of the Respondent
MR BILAL RAWAT (MR JAMES WESTON FOR JUDGMENT) (Instructed by the Treasury Solicitor) appeared on behalf of the Attorney General
Thursday, 15 March 2012
The issue
I will call Asma Dukali the wife and Mohamed Lamrani the husband. It is convenient to do so, although on any view they are not now married to each other and it begs the very question in issue, namely whether they ever were.
This is an application by the wife pursuant to section 13 of the Matrimonial and Family Proceedings Act 1984 for leave to apply for financial relief under Part III of that Act. Section 12 of that Act provides as follows:
"12(1) Where —
(a) a marriage has been dissolved or annulled … by means of judicial or other proceedings in an overseas country, and
(b) the divorce, [or] annulment … is entitled to be recognised as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act."
There has been a divorce between these parties in Morocco. The sole issues are (i) whether the wife can establish that there had been between these parties a "marriage" within the meaning of that word where it appears in section 12(1)(a); and, if so, (ii) whether the Moroccan divorce is entitled to be recognised as valid in England and Wales as required by section 12(1)(b). If the wife can bring her case within the requirements of section 12, then it is accepted that all the other requirements for the grant of leave under section 13 of the Act are sufficiently satisfied in this case.
In a sentence, the issue is whether what judges have recently labelled or characterised as a "non-marriage" under English law, so as to be outside the scope of an English suit for matrimonial relief under the Matrimonial Causes Act 1973, can nevertheless amount to a "marriage" for the purpose of financial relief under Part III of the 1984 Act.
The facts and background
Although both parties were present throughout the hearing and I offered to hear oral testimony, neither party nor their counsel asked that I should do so. There is, indeed, little (if any) disagreement as to the essential facts. Both parties are citizens of Morocco and both are of Moroccan descent and of the Muslim faith. The wife was, however, born in England and has always lived and been educated here. She has always also been of dual British citizenship. She is now aged 33. She is well educated and holds a degree in design studies from London Guildhall.
The husband was born in Morocco. However, he moved to England with his parents when he was aged 7 and has lived and been educated here ever since. He has, at all material times, also been of dual British citizenship, which he acquired whilst at university. He is now aged 44. He is also well-educated and holds a degree in scientific computing from Southbank University.
On 8 January 2002 the parties went through a Moroccan civil ceremony of marriage at the Moroccan Consulate in London. At that time the wife was aged 23 and the husband aged 33, so they were fully adult and mature graduates and no issue could arise as to capacity to marry. The marriage was not an arranged one and the parties married out of love after a courtship and a formal engagement. Family members and other witnesses were present at the ceremony. The ceremony was performed by a qualified Moroccan Udul or Adoul (a notary), not by an Imam, although the marriage certificate refers also to the blessings of Allah and the use of the Holy Book. There is a formal marriage certificate and that and an English translation are now at bundle pages C8 and 9. The ceremony was followed by two wedding parties in London and a honeymoon abroad when, as the husband put it in his statement, "our lives truly started together". There was, however, no compliance or purported compliance with any of the requirements of the English Marriage Acts 1949 to 1994.
Later in 2002 a flat was purchased in the husband's sole name in West London as their joint home. I understand that it is now worth about £300,000 and there is no mortgage upon it. It is the principal, if not sole, significant asset. In January 2006, the parties' only child, Selma, was born. She is now aged 6. Both parties have always worked throughout their marriage.
Very sadly, difficulties developed during the marriage. At paragraph 7 of his statement (now at bundle page C12) the husband said, "Our marriage was characterised by short periods of happiness, interspersed with more difficult times when we would stop communicating." For a period during 2009 the wife actually left the flat. Later she returned to live there and both parties still reside there now. However, they say that any cohabitation in a marital sense ended during 2009 and that they have been separated since then, albeit now still both residing in the same home. The effective duration of the marriage was, therefore, about 7 1/2 years.
On 6 May 2010 the wife presented an English petition for divorce in the Principal Registry of the Family Division. That petition propounded the marriage in the Moroccan Consulate on 8 January 2002 and prayed for a divorce relying on alleged unreasonable behaviour. The Moroccan marriage certificate and an English translation of it were lodged with the court. On 27 August 2010 the husband filed an answer in which he admitted the ceremony of marriage, but alleged that it "did not create a marriage capable of recognition or dissolution under English law".
In accordance with good practice, the wife's solicitors had sent to the husband a draft petition several months before it was actually presented in May 2010. It appears that meantime that had prompted the husband to commence, on 14 April 2010, a petition for divorce in a court of first instance in Larache in the Kingdom of Morocco. The petition was based "on the grounds of dissension". The wife was later served and engaged in the proceedings through a lawyer in Tangier. It is common ground between the parties that, whatever its status in England, there had been a valid Moroccan civil marriage between them which, within Morocco, was regarded as valid and subsisting. There was a final Moroccan civil divorce, which appears from a document now at bundle page D7 to have been finally perfected on 2 June 2011. It is not in issue that that divorce was obtained "by means of judicial proceedings" in Morocco within the meaning of section 12(1)(a) of the 1984 Act and that none of the discretionary grounds for non-recognition in section 51(3) of the Family Law Act 1986, based on inadequate service or participation or other deficiencies, apply. However, the Moroccan divorce only makes very modest financial provision indeed for the wife and no provision in relation to the flat or its value.
The wife relies upon that divorce as triggering her right to apply for financial relief after an overseas divorce under Part III of the 1984 Act. The husband says that Part III is not triggered (a) because there was no marriage recognised in England; and (b) because, although he himself applied for and obtained the Moroccan divorce, it should not be recognised here.
The Attorney General was given notice of these proceedings and has intervened in them. The Attorney General fully supports the position of the husband. The Attorney General submits, in summary, that public policy firmly requires maintaining a position that a ceremony or process which is conducted solely in England and Wales, but which is entirely outside the scope of the Marriage Act 1949, has no legal consequence as a marriage in England and Wales. He submits that Parliament has created a structured set of rules as to who can contract marriages in England and Wales and how such marriages should be conducted and registered. Many consequences may flow from marriage, both as between the parties and other family members and members of the public generally, and as between the parties and the State (e.g. taxation and entitlement to benefits). The Attorney General submits that those who only wish to participate in some religious ceremony or some other personal form of ceremony which has personal significance for them, are completely free to do so. But, he submits, those who wish to achieve the status and also any benefits from marriage, must do so in the ways and with the formalities that Parliament has prescribed.
The parties' accounts
Although I have now summarised the facts, I now record the parties' respective accounts in their own words in their statements. At paragraph 2 of her statement dated 23 December 2011, the wife says:
"My contention is that the marriage is valid, that it is recognised as a civil marriage by the Moroccan government and should therefore be recognised as a civil marriage within this jurisdiction."
Within paragraphs 5 to 8 of her statement, she continues:
"5. We married at the Moroccan Consulate on the 8 th January 2002. The venue for the marriage was always agreed by me, [the husband] and both our parents and was intended to be a proper civil marriage in the fullest sense. I would...
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