MM v NA
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 22 January 2020 |
| Neutral Citation | [2020] EWHC 93 (Fam) |
| Court | Family Division |
| Docket Number | Case No: BS17R01727 |
| Date | 22 January 2020 |
[2020] EWHC 93 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts
Case No: BS17R01727
(Declaration of Marital Status: Unrecognised State)
The applicant and the respondent appeared as litigants in person
Mr Deepak Nagpal and Mr Admas Habteslasie (instructed by the Attorney General) as Advocate to the Court
( Mr Nagpal appeared alone at the hearing)
Hearing date: 16 October 2019
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.
Introduction
This is an application for a declaration in relation to the marital status of the parties pursuant to section 55 of the Family Law Act 1986. The families of both MM and NA are of Somali origin. MM is a Dutch national who was born in Holland and has lived in the United Kingdom since 2001. He works at a local hospital. NA was born and raised in Somaliland and was living there prior to her marriage. The couple met in Somaliland in 2012 when MM was visiting and, after a period of courtship, they agreed to marry. On 7 March 2013 MM and NA attended a religious ceremony of marriage in Hargeisa. Later that day they held what they have referred to as a “marriage wedding” which was attended by many family and friends. Some ten days later they attended the local district court in Hargeisa where their marriage was validated and a formal marriage certificate issued. They have lived together as husband and wife ever since and, on 20 January 2016, NA gave birth to their daughter who is now 4 years old.
Theirs is a very happy and settled relationship. They regard themselves as husband and wife. However, as a result of the need to complete various forms, an issue arose as to whether their marriage was entitled to formal recognition in this jurisdiction. Whilst they were both happy to undergo a further civil ceremony of marriage in a local register office, this option was not open to them as the registrar took the view that they may already be married to one another 1. Thus it was that they applied to the court for a formal declaration as to whether or not their marriage was at its inception a valid marriage which subsisted as at the date of their application. Whilst NA is the respondent to these proceedings, there is no issue between these parties. They simply wish to secure declaratory relief for the purposes of clarifying their marital status in this jurisdiction where they have settled and made their family home. Because the case raises issues which may be relevant to the wider Somali diaspora living in England & Wales, this judgment will be published on an open (albeit anonymised) basis.
Whilst this court is frequently required to determine the validity of an overseas marriage, the position here is complicated by the fact that, at the time this marriage was celebrated, the Republic of Somaliland was not recognised by the United Kingdom as a State.
There are thus two fundamental questions which need to be answered before the court can grant the application which is sought.
(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.
Before turning to consider these two questions, I must acknowledge the very considerable assistance which has been provided to the court by the Attorney General through the Government Legal Department. He has appointed Mr Nagpal and Mr Habteslasie as Advocates to the Court and has undertaken the instruction of the single joint expert, Mr Guleid Jama, who has provided the court with his expert opinion on matters arising in relation to family law and practice in Somaliland. Mr Nagpal and Mr Habteslasie have undertaken a significant amount of legal research for the purposes of their presentation to the court, a task which, with all their respective skills and abilities, these litigants in person could not have completed. Mr Nagpal appeared alone to present the legal argument at the hearing. Not only was his advocacy of great assistance to me; he presented a complex legal landscape in terms which MM and NA could follow and understand as their case was explored through a great deal of past legal authority emanating not only from English jurisprudence but also from international law. I am most grateful to him for that endeavour, as I am to Mr Habteslasie.
The first question: are the parties validly married?
There are various defects which may make a marriage invalid: see Clarkson & Hill's Conflict of Laws, 5 th edition. The question may often be whether the parties complied with the proper formalities for the celebration of the marriage, or whether each was able to marry because of age or a close family connection to one another. The rules about whether or not a marriage is valid fall to be considered in two different ways. There are rules which concern formal validity and others which concern essential validity, or a party's personal capacity to marry. The former concern the manner in which a ceremony of marriage is undertaken (for example, ensuring the marriage itself is public and proof that it has taken place in accordance with local requirements). The latter relates to whether or not the marriage can take place at all between the two individuals concerned. Under English law formal validity is regulated by the domestic law of the country where the marriage is celebrated. This is often referred to as lex loci celebrationis. Essential validity, or capacity, has to be considered in the light of the domiciliary laws of the individual parties at the time of the marriage: see Rule 73 of The Conflicts of Laws, Dicey, Morris & Collins (15 th edition) ( Dicey).
In order to answer the first question, I have to consider the evidence of the parties themselves together with that of the single joint expert instructed in this matter by the Attorney General.
Each of MM and NA have provided written statements in relation to the circumstances surrounding their marriage. MM's family travelled to Hargeisa in Somaliland some three weeks before the wedding. The religious marriage ceremony was performed on 7 March 2013 followed by a “marriage wedding” on the same night attended and witnessed by his mother and sister (both nationals of the Netherlands), close family and friends. The marriage was governed by Islamic law and the formalities were undertaken by a local religious leader who had given public notice of his intention to conduct the marriage some four days earlier. Ten days later, on 17 March 2013, the parties attended at the local district court in Hargeisa to validate or “legalise” the marriage in order to obtain a formal marriage certificate. They were asked to bring with them two witnesses who had to be citizens of Somaliland. Two of NA's cousins were chosen to fulfil this role. Having formally sworn on the Quran that the marriage had taken place and was valid in terms of local requirements, the parties were issued with a formal marriage certificate, a copy of which has been filed with the court and sent to the single joint expert, Mr Jama. It is a formal document which bears the seal of the Hargeisa District Court which records the details of the parties, their witnesses and the fact that the law regulating the marriage is Sharia law. It has been signed by a judge who is identified on the face of the certificate. It is accompanied by a declaration of authenticity and formal registration from the Director General of the Ministry of Justice and Judicial Affairs, counter-signed by the Director General of the Ministry of Foreign Affairs & International Cooperation. On 3 March 2015 the Imam who performed the marriage ceremony on 7 March 2013 attested before a public notary that he was the individual celebrant who had married this couple.
The expert evidence and evidence from the Foreign & Commonwealth Office
Mr Guleid Jama of Xaqdoon Law Firm based in Hargeisa has provided the court with a report. Mr Jama has an array of impressive legal credentials. I am entirely satisfied that he is qualified to assist the court in relation to these matters in his capacity as an expert witness. As he explains, Somaliland was a British Protectorate before it gained independence on 26 June 1960. It swiftly entered into a union with the Italian colony of Somalia which achieved independence the following month in 1960. The central government of Somalia collapsed in 1991 after a protracted civil war. In that same year, Somaliland declared the restoration of independence from Somalia. As yet, it has not been recognised by the United Kingdom as a State and the UK government has not entered into any formal treaties with Somaliland or the government of Somaliland.
I have also been provided with a witness statement from St John Gould who is employed by the Foreign & Commonwealth Office as Head of its East Africa Department, a post he has held since April 2019. As such he has responsibility for policy issues relating to Somaliland. Despite the absence of formal recognition as a State in its own right, Mr Gould has confirmed that the United Kingdom has regular political contact with the government of Somaliland and has entered into signed memoranda of understanding with it. As a result, the United Kingdom government has channels of engagement with the Somaliland judicial system in matters such as technical assistance and counter-terrorism. Mr Gould concludes his written...
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Dr Ali Mahmoud Hassan Mohamed v Mr Abdulmagid Breish
...made a similar submission by reference to the decision of Roberts J in MM v NA (Declaration of Marital Status: Unrecognised State) [2020] EWHC 93 Fam at [66]. This is a theme reflected in obiter statements by Lord Wilberforce in Carl Zeiss at p. 954; by Lord Denning MR in Hesperides Hotels......