Majda Asaad v Zeyto Kurter

JurisdictionEngland & Wales
JudgeThe Hon. Mr Justice Moylan
Judgment Date05 December 2013
Neutral Citation[2013] EWHC 3852 (Fam)
Docket NumberCase No: FD12D02671
CourtFamily Division
Date05 December 2013
Between:
Majda Asaad
Applicant
and
Zeyto Kurter
Respondent

[2013] EWHC 3852 (Fam)

Before:

The Hon. Mr Justice Moylan

Case No: FD12D02671

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Bhutta (instructed by Oliver Fisher) for the Applicant

Mr Daniels (instructed by Barker Gooch & Swailes) for the Respondent

Hearing dates: 1 st, 2 nd July, 5 th August and 5 th December 2013

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon. Mr Justice Moylan

This judgment is being handed down in private on 5 th December 2013. It consists of 22 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The Hon. Mr Justice Moylan
1

In this case I must determine (a) the nature of a ceremony which took place in a Syriac Orthodox Church in Syria on 6 th August 2007; (b) the effect of the ceremony; and (c) whether, as a consequence, the Petitioner is entitled to a decree of divorce or a decree of nullity or no remedy at all.

2

The Petitioner initially sought a decree of divorce on the basis that the ceremony had effected a valid marriage. During the course of the proceedings her position has changed. By the end of the hearing she was seeking either (i) a declaration that the marriage was valid in reliance on the presumption of marriage based on a ceremony followed by cohabitation and, if the marriage is found to be valid, a decree of divorce; or (ii) a decree of nullity on the basis that the failure to comply with certain requirements of Syrian law is such that the marriage is not valid but is sufficient to entitle the Petitioner to a nullity decree.

3

The Respondent alleges that the ceremony was no more than a blessing and did not create either a valid marriage or a void marriage. It is his case that the ceremony is of no legal effect and does not entitle the Petitioner to any remedy under English law.

4

The documents which have been translated for these proceedings have adopted different spellings for some of the people and places involved. Also the Church is known as the Syrian as well as the Syriac Orthodox Church. I have used the same names rather than as they appear in the individual translations and the latter rather than the former name for the Church.

Proceedings

5

The Petition was filed on 6 th June 2012. In it the Petitioner asserts that she and the Respondent were married on 6 th August 2007 by a ceremony which took place at a Syriac Orthodox Church in Kamishli, Syria. The Petition sought a decree of divorce. A document entitled "Marriage Certificate" was sent with the Petition. It is dated 6 th November 2009. It declares that the parties were married on 6 th August 2007 by the priest at the Syriac Orthodox Church in Kamishli. It is signed by the Metropolitan of Jazirah and Euphrates.

6

In his Acknowledgement of Service dated 4 th July 2012 the Respondent asserts that the court has no jurisdiction because there "is no valid marriage". The Respondent also issued an application seeking the dismissal of the Petition on the basis that "there is not and has never been a marriage between the parties". He asserts that the ceremony was merely a church blessing and did not fulfil the requirements under Syrian law for it to be a legal marriage.

7

These documents set out the essential contest between the parties. The issues which I must determine, as summarised above, are:

(a) what was the nature of the ceremony which took place on 6 th August 2007; was it a marriage ceremony or merely a blessing;

(b) what is the effect of the ceremony having regard to the fact that certain of the formal requirements of Syrian law were not fulfilled, in respect of permission and registration; and

(c) what remedy under English law, if any, is available to the Petitioner in respect of the ceremony.

History

8

Much of the history is disputed but the following provides the broad background to this case.

9

The Petitioner was born in Syria in 1978 and lived there until 2007. She is a member of the Syriac Orthodox Church.

10

The Respondent was born in Turkey in 1970 and moved to live in England in about 1990. He has also been at times a member of the Syriac Orthodox Church.

11

The parties met in Syria in 2006. There was a ceremony at the Syriac Orthodox Church in Kamishli on 6 th August 2007. This was attended by a large number of guests. I have seen photographs of the ceremony and the reception which followed it. There is also a video.

12

No marriage was registered with the Syrian authorities and no permission was obtained as required as the Respondent is not a Syrian national. The Petitioner's status remains registered with the Syrian authorities as single.

13

After the ceremony the parties travelled to Turkey, first to the Respondent's home town and then to Istanbul.

14

The Petitioner applied for a spousal visa from the British Embassy in Istanbul on 18 th September 2007. Her visa was issued on 20 th September 2007. She arrived in the UK on 3 rd November 2007 and went to live with the Respondent. The Petitioner worked at a café owned by the Respondent. There is a dispute about the payslips, some of which are said by the Respondent to have been forged, but those produced by the accountants for the café are in the name of "Mrs M Asaad".

15

The parties separated in the latter half of 2009 when the Petitioner left the home.

16

The parties have filed written statements and they gave oral evidence. The Petitioner also relies on the written and oral evidence of Archbishop Dawod, Head of the Syriac Orthodox Church in the UK. The Respondent relies on statements from Gabriel Malas, Sharon Kurter, Simon Sheen and his parents. I propose only to summarise the evidence in this judgment but I have taken it all into account when determining the issues in this case.

The Petitioner's Case

17

The Petitioner states that she and the Respondent met in 2006. He visited Syria in the Summer of 2006 and they became engaged at Christmas when the Respondent again visited Syria. The Respondent gave her an engagement ring when he was in Syria at Easter 2007. A few days before the ceremony in August 2007, the Petitioner had a traditional Henna party. The ceremony itself, which was organised by the Respondent, was a large family wedding with members of both her family and the Respondent's family (his parents and four of his brothers and sisters) attending. During the ceremony they exchanged wedding rings and signed the marriage register. There is a video and photographs of the ceremony, the latter having been put in albums, one with the name "Wedding Album" appearing on the front.

18

After the ceremony the parties travelled to Turkey, first to the Respondent's home town and then to Istanbul. When in Istanbul, they went to the British Embassy, where the Respondent was told they could apply for a visa. The Petitioner later applied for a spousal visa after the Respondent had returned to England. She applied there because the Embassy in Damascus was effectively closed. When she and the Respondent went there at Easter 2007 they were told they would have to go to another Embassy.

19

After her arrival in the UK on 3 rd November 2007 the Petitioner lived with the Respondent. She also worked for a period at a café he owned. Although the period of her employment is disputed, the accountants for the café have written confirming that "Mrs Majda Asaad" was an employee and have produced payslips which are in the name of Mrs M Asaad.

20

The Petitioner spoke to her local priest, now Archbishop Dawod, about difficulties in her relationship with the Respondent. He spoke to both of the parties.

21

When the Petitioner left the home she went to live with her sister who also lives in England.

22

On 28 th November 2011 the Petitioner obtained a religious divorce from the Syriac Orthodox Church. In a certificate signed by Archbishop Dawod and dated 5 th January 2012 it is stated that the parties' marriage on 6 th August 2007 has been dissolved.

23

It was suggested to the Petitioner during the course of cross-examination that her goal was to live in England and that the ceremony was undertaken merely to provide a respectful cover for this to take place. She strongly refuted this saying that she and the Respondent were married and intended to marry. She came to this country solely as the Respondent's wife.

24

The Petitioner has produced a letter dated 21 st December 2011 from the Syrian Embassy in London confirming that the marriage certificate produced by her is authentic and genuine. She also relies on what are said to be photocopies of the marriage register from the Church in Kamishli which she says they signed on the day of the ceremony. They contain details of the parties, the witnesses, the church and the priest. They also contain like details for other couples who have married at the church and which appear on the same page. These were provided by the Syriac Orthodox Church in Syria by letter dated 21 st June 2013 to the Petitioner's Solicitors from the Metropolitan of Jazirah and Euphrates.

25

The written evidence from Archbishop Dawod comprises a letter dated 2 nd February 2010, written to assist the Petitioner with her immigration status, and a statement for these proceedings dated 24 th June 2013. As referred to above, he also gave oral evidence.

26

He states that both the Petitioner and the Respondent are members of the Syriac Orthodox Church and are well known to him. He has known the Respondent since about 1994. He was an active member of the church until recent years. The Respondent was previously married and divorced. He had been married in 1999 to a woman called FA in a Syriac Orthodox Church...

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    ...and therefore the appropriate remedy to be made by the English court is a nullity order. 71 That was the case in Asaad v Kurter [2014] 2 FLR 833 where Moylan J at [70] – [97] laid out an impressive survey of our private international law which illuminates the difficulty, arising from time t......
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