Islamic “marriage” ceremony at home declared invalid by Court of Protection
25 November 2013
A Local Authority v SY  EWHC 3485 COP (12 November 2013] – read judgment
A judge in the Court of Protection has ruled that a man who had “exploited and took advantage” of a young woman for the purpose of seeking to bolster his immigration appeal had engaged in an invalid marriage ceremony. The man, said Keehan J, had
“deliberately targeted” the respondent because of her learning difficulties and her vulnerability.
The courts would not tolerate such “gross exploitation.”
This was an application by a local authority in the Court of Protection in respect of the capacity of the respondent, SY, to litigate and to make decisions in relation to her life.
SY, a young woman with an IQ of 49, had been known to the authority since March 2005 when she was 11 years old. There were concerns about her non-attendance at school, issues of domestic violence and the fact that SY was staying out at night at the homes of older males which resulted in SY and her siblings being placed on the At Risk Register. She was subsequently made the subject of a care order in 2007 which ceased to have effect upon SY attaining her majority in December 2011. Since then, she had a history of disrupted placements. Her foster placement broke down in June 2011 and she moved to supported accommodation. In August 2011 she moved to live in semi-independent accommodation, but whilst she was there she told her social worker that she was being sexually abused by other males, in particular a 23 year old man, TK. As a result of this she moved to supported lodgings.
A strategy meeting held in late 2011 concluded that SY lacked capacity to identify that she was being abused or exploited. In early 2012 her carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.
The evidence before the court was that TK was seeking this marriage in order to secure his immigration status, since he had been arrested for immigration offences pending his deportation. It appeared that he hoped his marriage to TK would buttress his asylum appeal. However, his case against the refusal to grant him asylum was dismissed on all grounds. The tribunal judge found that his relation ship with SK, if there was one, did not have “the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He was deported in August 2012.
In the light of the capacity assessments before him, Keehan J was “wholly satisfied” that SY lacked the capacity to litigate and the capacity to make decisions about her residence, her contact with others, her care needs and entering a contract of marriage. On the basis of expert opinion, he was also satisfied that SY has the capacity to consent to sexual relations. Accordingly he was prepared to make the orders sought by the authority in relation to the current placement of SY and the care package.
Declaration of Non-Marriage
Since there is no provision in the Mental Capacity Act 2005 to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012, the remaining issue before the court was whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. After considering the authorities on validity of marriage, Keehan J applied the reasoning of Hughes J (as he then was) in A-M v. A-M (Jurisdiction: Validity of Marriage)  2 FLR 6, a case concerning the status of an Islamic marriage ceremony conducted in England. There the judge concluded that the marriage was invalid:
the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity.
On the basis of that, and similar authorities, Keehan J was satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. It was a “non-marriage”. It was within his jurisdiction to make this declaration even though the MCA was silent on such matters because
the protection or intervention of the inherent jurisdiction of the High Court should be available to those lacking capacity, even where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005.
As Parker J said in XCC v AA and Others ,
It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion.
It is not surprising that the COP was so ready to use its inherent jurisdiction to declare the marriage invalid. Sham marriages for immigration purposes and the exploitation they bring with them may not have been within the range of abuses faced by vulnerable individuals when the mental health legislation was initially drafted, but by the time the Mental Capacity Act was passed in 2005 the practice had become rife across the country. That is no doubt why Keehan J felt that the common law had an important role to play in filling this lacuna; there were in his view “compelling reasons of public policy” why sham ‘marriages’ are declared non-marriages.It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.
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I’d like to ask a really stupid question, if there are any family lawyers reading this. Why did they need to issue a formal declaration of invalidity of the marriage? I can see why you’d need the Court to make a declaration of incapacity (because of the presumption of capacity), but the validity of the marriage wasn’t about capacity it was about compliance with the marriage laws. The ceremony patently didn’t comply with the marriage laws, any document purporting to be a wedding certificate clearly would not be and would not be accepted in any context where you might need to legally prove your marital status. It doesn’t even look like the asylum tribunal treated it as a marriage. So why bother making a declaration – who is it for? Is this just a symbolic act or does it have any legal effect or purpose?
A good result; but be aware that the result of declaring these religious ceremonies which do not purport to come within the Marriage Act non-marriages, not even void marriages, is often disastrous for the woman. If the house is in the man’s name and she has never worked for money outside the home she will have no claim if the “marriage” breaks down or on the man’s death.
Nevertheless it is the correct thing to do. The Marriage Acts were passed for good and sufficient reasons.
It is a sad fact that these ceremonies are most common among Muslims, rarer among Hindus, and very rare but known among the Jewish Orthodox. There is no excuse for it; having a civil ceremony first (or later, but preferably first) is not expensive or difficult (many Muslim websites call it, incorrectly, the “civil registration” but who cares so long as they do it?) – not is it too much to ask for mosques and temples and gurdwaras and synagogues and shtiebels to register for marriages and appoint celebrants.
I for one would be very interested to know what other protections in course have been afforded this poor woman, to what extent social services probed the sexual congresses and whether or not she had the capacity to consent there too.
Also does this not affect her religious standing? If this marriage is struck off, she could be classed as an adulterer, something we don’t pay much attention to in this western nation but in Saudi Arabia she could be flogged, imprisoned and even beheaded because of the strict limitations some Islamic law interpretations place on sex outside of marriage, it is quite commonplace in Saudi Arabia for rape victims to face sterner punishments than their attackers, what support and assistance would this lady be afforded if her local community close the doors to her?
To be fair it sounds distinctly to me that this woman has been failed pretty much all her life by those charged with her protection, whether parents and family, social services and education, there must be an attempt at least to rectify this sad state of affairs and give her some justice AND future protection…
From the article itself
“On the basis of expert opinion, he was also satisfied that SY has the capacity to consent to sexual relations.”
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