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Court of Appeal considers use of inherent jurisdiction in Forced Marriage case

5th September 2023

Rhys Hadden has appeared in the Court of Appeal in Re SA (Declaration of Non-Recognition of Marriage) [2023] EWCA Civ 1003, a complex appeal concerning the inherent jurisdiction of the High Court to make a declaration that an overseas marriage should not be recognised as valid in England and Wales when one party to the marriage lacked capacity to enter into that marriage.

The issue arose in the context of concurrent proceedings before the Family Division and Court of Protection where an application for a Forced Marriage Protection Order (“FMPO”) had been made by West Northamptonshire Council on the basis that SA, a British woman with a learning disability, had entered into an arranged marriage in Bangladesh when she lacked capacity to do so.

Newton J had previously determined that SA lacked capacity to enter into marriage or engage in sexual relations (both at the time and at the date of the hearing), made a final FMPO and granted a “declaration of non-recognition” regarding the status of the marriage in England and Wales. SA’s mother, supported by SA’s father, appealed against the declaration of non-recognition, relying heavily on the extensive obiter comments of Mostyn J in NB v MI (Capacity to Contract Marriage) [2021] EWHC 224 (Fam). The appeal was opposed by the local authority and the Official Solicitor.

In a detailed and wide-ranging judgment, Moylan LJ confirmed that sections 55 and 58 of the Family Law Act 1986 (“FLA 1986”) do not prohibit the court from making a declaration of non-recognition under the inherent jurisdiction in respect of a voidable foreign marriage (see paras 78-95 of the judgment). The Court of Appeal further confirmed that Newton J was right to make such a declaration in the factual circumstances of this case, and that it is not necessary to demonstrate that an adult has actually suffered violence, coercion or distress before the Court will be prepared to grant this form of relief (paras 97-100).

While considered by a number of first instance decisions, this issue had not been considered at an appellate level since the landmark decision of Westminster City Council v C [2008] EWCA Civ 198. It clarifies any legal uncertainty that has arisen following the decision NB v MI. The Court of Appeal’s decision also reinforces the position that a declaration of non-recognition remains a necessary and important remedy in the context of protecting a vulnerable adult from the legal consequences of entering into a marriage when they lacked capacity to do so.

Rhys represented SA through the Official Solicitor. He was instructed by Laura Hobey-Hamsher and Brigdhe Gallivan of Bindmans LLP. The full judgment can be accessed via BAILLI here and The National Archives here.

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