SH v KH
| Jurisdiction | Scotland |
| Judgment Date | 13 October 2005 |
| Neutral Citation | [2005] CSIH 70 |
| Docket Number | No 7 |
| Date | 13 October 2005 |
| Court | Court of Session (Inner House) |
Court of Session Inner House Extra Division
Lord Penrose, Lord Macfadyen, Lord Marnoch
Husband and wife - Marriage - Nullity - Formal compliance with procedural requirements - Whether parties had exchanged true matrimonial consent - Marriage (Scotland) Act 1977 (cap 15)
Process - Res noviter veniens ad notitiam - Perjury at proof
The Marriage (Scotland) Act 1977 and regulations made thereunder set out the procedural requirements for the constitution of civil marriage in Scotland. The substantive requirements of marriage are not defined. However, sec 9(3) provides that the language used must include "a declaration by the parties that they accept each other as husband and wife."
The parties took part in a civil marriage ceremony at Stirling registry office on 22 June 1998. It complied with the procedural formalities prescribed by the Act. Both parties were Muslims. The marriage was arranged by their relations. The pursuer was born in Scotland. The defender had come to Scotland on a six-month visa. Agreement had been reached that the ceremonies required by their religion to constitute marriage would take place in the summer of 1999. The decision to go through the registry office ceremony shortly after the engagement was taken in the knowledge that marriage would assist in the defender's application for an extension of his visa. Following the registry office ceremony the parties did not live together or have sexual relations. The defender applied for an extension of his visa on the ground of the marriage. Both parties signed a declaration that they were married and were living together as husband and wife. Thereafter the defender postponed the religious ceremonies on several occasions. In 2000 he advised the pursuer and her mother that he no longer wished to go ahead with them. The pursuer raised an action for declarator that the marriage was null by reason of lack of consent. After proof, on 18 March 2003 the Lord Ordinary dismissed the action. He held that the parties had agreed to enter into the legal relationship of marriage, and had contracted a valid marriage.
The pursuer reclaimed. She lodged a minute of amendment, which was allowed to be received and answered on the ground that the averments might involve res noviter veniens ad notitiam. A proof took place, at which the defender admitted perjury in a number of respects, including his relationship with a girlfriend. However, the findings in fact which differed from those made at the proof related to the period after the registry office ceremony. At the reclaiming motion the pursuer argued that the essence of marriage was consent to enter the conjugal state, which was to live together, offer mutual support, and generally to be husband and wife. She submitted that the Lord Ordinary had failed to find that the parties had exchanged positive matrimonial consent, and his conclusion was accordingly flawed.
Held that the essential requirement of a valid marriage is that the parties voluntarily exchange true and present consent to become husband and wife, which involves some sort of shared life, and in the present case the parties did not intend the registry office ceremony to result in their becoming husband and wife in any real sense; as religious Muslims they regarded observance of the prescribed religious ceremonies as an essential prerequisite of the married state (paras 52-56, 62-65); and reclaiming motion allowed, and decree of declarator of nullity of marriage pronounced.
SH raised an action of declarator of nullity of marriage against KH. On 18 March 2003, after hearing proof, the Lord Ordinary (Clarke) dismissed the action. The pursuer reclaimed. The pursuer lodged a minute of amendment, which was allowed by the Extra Division to be received and answered, on the ground that the averments might involveres noviter veniens ad notitiam. On 24 June 2004 the pleadings were amended and a proof was allowed on the new issues. After proof on 31 March 2005 the Lord Ordinary (Macfadyen) reported the proceedings and the findings in fact made.
Cases referred to:
Akram v Akram 1979 SLT (Notes) 87
Allen (1773) 2 Hunters' JP 213
Brady v Murray 1933 SLT 534; 1933 SN 75
Cameron v Malcolm (1756) Mor 12680
Courtin v ElderSC 1930 SC 68; 1929 SLT 676
Hyde v HydeELR (1866) LR 1 P & D 130
MacDougall v ChitnavisSC 1937 SC 390; 1937 SLT 421
Macfarlane v MacfarlaneSC 1956 SC 472; 1956 SLT 333
McLeod v Adams 1920 1 SLT 229
Mahmud v Mahmud 1977 SLT (Notes) 17
Orlandi v CastelliSC 1961 SC 113; 1961 SLT 118; 1960 SLT (Notes) 89
Sheffield City Council v E and anrELRWLR [2004] EWHC 2808; [2005] Fam 326; [2005] 2 WLR 953
Sohrab v KhanSCUNK 2002 SC 382; 2002 SLT 1255; 2002 SCLR 663
Textbooks etc. referred to:
Bell, GJ, Principles of the Law of Scotland (T&T Clark, Edinburgh), vol III, chap 1, para 1538
Clive, EM, The Law of Husband and Wife in Scotland (4th ed, W Green, Edinburgh, 1997), paras 7.043, 7.047, 9.002, pp 51, 86, 88-89, 108
Erskine, J, An Institute of the Law of Scotland (Edinburgh), III.6.11
Fergusson, J, A Treatise on the Present State of the Consistorial Law in Scotland with Reports of Decided Cases (1829, Bell and Bradfute, Edinburgh), p 105
Fraser, PF, Treatise on Husband and Wife according to the Law of Scotland (2nd ed, T&T Clark, Edinburgh, 1876 and 1878), vol 1, pp 162, 169, 415, 434, 435
Stair, The Institutions of the Law of Scotland Deduced from it's Originals and Collated with the Civil, Canon, and Feudal Laws and with the Customs of Neighbouring Nations (Edinburgh), vol I, iv 1, para 1.4.6
Stair, The Institutions of the Law of Scotland Deduced from it's Originals and Collated with the Civil, Canon, and Feudal Laws and with the Customs of Neighbouring Nations (More ed, Bell & Bradfute, Edinburgh, 1832), p xiii
The cause called before an Extra Division, comprising Lord Penrose, Lord Macfadyen and Lord Marnoch, for a hearing on the summar roll on 14 and 15 June and 8 and 9 September 2005.
At advising, on 13 October 2005-
Lord Penrose- [1] In this reclaiming motion, the pursuer and reclaimer seeks recall of an interlocutor dated 18 March 2003 by which the Lord Ordinary dismissed her action for declarator that a pretended marriage between the parties at Stirling registry office on 22 June 1998 was null by reason of lack of consent by the parties to the marriage.
[2] On 31 May 2004, the Extra Division allowed a minute of amendment for the pursuer (no 21 of process) to be received and answered, on the ground that the averments proposed might involveres noviter veniens ad notitiam. Answers were lodged (no 22 of process), and both documents were thereafter adjusted. On 24 June 2004, the court allowed the pleadings to be amended in terms of the adjusted minute of amendment and answers, allowed parties a proof on the issues raised by the new material, and remitted to Lord Macfadyen to take that proof and to report. In due course he reported the proceedings and the findings in fact made in the light of the evidence led. Some of his findings differ from the findings of the Lord Ordinary. The Lord Ordinary accepted evidence that has subsequently been admitted to have been perjured. In these unusual circumstances it is necessary to review the factual basis on which a decision in this reclaiming motion must now proceed.
[3] The pursuer was 21 years of age at the time of the original proof. She had been born in Scotland on 19 June 1981. Her parents, who were then divorced, had come to Scotland from Pakistan. The pursuer was living with her mother at the time of the proof. She was a student at the University of Glasgow. The defender and respondent was 29 years of age. He had come to Scotland in or about February 1998 from Pakistan to stay with his older brother who, with his wife and daughter, lived in Stirling. He had come for medical treatment on a visitor's visa which entitled him to remain in the United Kingdom for six months for the purpose of receiving that treatment.
[4] Both parties are Muslims. In or about March 1998, Mrs Salima Iqhbal made contact with the pursuer's mother. Mrs Iqhbal was acquainted with the defender's family in Scotland. She suggested that the defender would make a suitable husband for the pursuer, who was still at that point a secondary school pupil. Mrs Iqhbal was a friend of Mrs Jamila Chaudry who was, in turn, a friend of the pursuer's family.
[5] A meeting took place, attended by the pursuer's mother, the defender's older brother and his wife, Mrs Chaudry and Mrs Iqhbal. The pursuer's mother considered that the defender's family were good people, and a further meeting was arranged so that she could meet the defender. The meeting took place and was attended by the same parties with, in addition, the defender. As a result of this second meeting, the pursuer's mother formed the view that the defender would make a suitable husband for the pursuer.
[6] A further meeting took place towards the end of May 1998 for the parties to be introduced. It was attended by the pursuer and her parents; the defender, his brother, his brother's wife, and the defender's niece, Mr and Mrs Chaudry and Mrs Iqhbal. The meeting followed pre-arranged procedures. The pursuer, who already knew that her mother approved of the defender as her future husband, was in her bedroom. The defender was invited by the pursuer's mother and Mrs Chaudry to go into the room. The two ladies stayed outside the bedroom, but close to its door. The parties had a little time together. The duration of that period was not established. The defender thereafter withdrew from the bedroom.
[7] After the defender withdrew, the pursuer's mother and father asked if she was happy at the prospect of having the defender as her husband. She said that she was quite happy to go along with her mother's wishes. At that stage each party found the other attractive, and contemplated the prospect of being a married couple without any difficulty. Once it had been ascertained by the...
To continue reading
Request your trial
-
Ian Mccalman Rankin (ap) V. John Jack Trading As Lochill Equestetrian Centre
...averse to entertaining res noviter applications on these grounds; cf. Maltman v Tarmac Civil Engineering Ltd 1967 S.C. 177, S.H. v K.H. 2006 S.C. 129. This assumes, of course, that all the other requirements of such applications, as these have been outlined by your Lordship, are made out. I......
-
Appeal By Dk Against The Secretary Of State For Work And Pensions
...of Lord Clyde in Fitzpatrick v Sterling Housing Association Ltd, [2001] 1 AC 27, at page 51, and the opinion of Lord Marnoch in SH v KH, 2006 SC 129, at paragraph [63]. None of these indicates that a sexual element is an essential component of living together as husband and wife. [17] The s......
-
S.h. V. K.h.
...--> EXTRA DIVISION, INNER HOUSE, COURT OF SESSION Lord Penrose Lord Macfadyen Lord Marnoch [2005CSIH70] A867/01 OPINION OF LORD PENROSE in RECLAIMING MOTION by S.H. Pursuer and Reclaimer; against K.H. Defender and Respondent: _______ Act: Clarke; Balfour & Manson (Pursuer and Reclaimer) Alt......
- A v K
-
From Text-Book to Book of Authority: The Principles of George Joseph Bell
...Ltd v Nikolic [2009] CSOH 54. succession,166166E.g. De Lathouwery [2007] CSOH 54, 2007 SLT 437. husband and wife,167167E.g. S H v K H 2006 SC 129. nuisance,168168E.g. Robb v Dundee City Council 2002 SC 301. liability of joint wrongdoers,169169E.g. Wright v Stoddard International plc [2007] ......