Here at CFLP most of the work we do involves private law, which is helping individuals and their families through relationship breakdown, or advising in relation to happier events such as forthcoming marriages or moving in together. The other main part of family law is known as public law and involves a public body such as a local authority intervening in family life, usually in relation to concerns over a child’s welfare. Those interventions can lead to care orders (children being taken into care) or sometimes adoption orders, among other things.
On occasion those two areas overlap, as happened in a recent case, which has a rather distressing history.
In 2011, a 14 year old girl, of Pakistani descent was taken to Pakistan by her father and brother. Whilst there she was forced to marry a 24 year old man. This happened under duress: her objections were met with physical violence to her and the production of a gun, with associated threats. The marriage was consummated about two weeks later, after further threats to the girl that she must permit her husband to have sexual intercourse with her. As a result, while still aged fourteen, she became pregnant, essentially as the result of marital rape.
The girl returned to England and gave birth to a child, following which the local authority commenced care proceedings in relation to the girl and her baby. Within those proceedings, the local authority, with the support of the girl, sought a declaration of non-recognition of the marriage in Pakistan. This is where public and private family law overlapped.
The first point to make is that although the marriage took place in Pakistan and was valid there, because the girl was domiciled in England, the English courts could deal with the question of the validity of the marriage.
Then we come to the interesting question of when a marriage can be said never to have taken place, even when a ceremony has happened. There are three options for this situation: annulling a marriage on the basis that the marriage is void, annulling a marriage on the basis that the marriage is voidable, or a declaration from the court that the marriage ceremony is not recognised as creating a valid marriage.
Annulment ends a marriage (or civil partnership) like divorce, but the key difference is that annulled marriages are considered not to have existed.
A void marriage is treated as never having existed at all. A marriage can be declared void if the parties are too closely related, one or both of them was under 16, the formalities of marriage were ignored, one or other was already married or in a civil partnership, or the parties are not respectively male and female. Here, the court agreed that the marriage would be void as the girl was under 16 – even though it took place in Pakistan, the girl had English domicile and so was not able legally to marry.
A voidable marriage is treated as having existed up until the point that it is declared void. Voidable marriages can be annulled on the grounds of lack of valid consent to marry, non-consummation (through either incapacity or refusal), either party suffering from a mental disorder making them unfit for marriage, if the bride was pregnant by someone other than the groom at the time of the wedding, or if either party had a communicable venereal disease at the time of the wedding.
Only a party to the marriage in question can make an application to the court to annul the marriage, either because it is void or voidable. In this case, the girl apparently found that too difficult to do because of her circumstances, the effect of her ordeal, and her cultural heritage. The local authority could not do so on her behalf as they were not a party to the marriage – so instead, they asked the court to make a declaration of non-recognition of a marriage. This has the effect of declaring that the ceremony of marriage did not create a marriage which can be recognised as such under English law, but there is a specific statutory prohibition on declaring a marriage void.
Although both the local authority and the girl herself wanted the court to make a declaration of non-recognition of the marriage, the court found that it could not because to do so would have the effect of declaring the marriage void. The fact that the girl still had the opportunity to make an application for nullity herself meant that the court felt it would be going behind the law if it were to make the declaration requested. However, during the judgment, the court did state that it found the marriage to have been void – this was important in the case, as it has an effect on what happens now for the baby. Despite this, the girl remains married and the court will not declare that this marriage will not be recognised.
Here we have an example of a rather harsh and confusing exercise of justice: an unsatisfactory conclusion, perhaps, from a social perspective, while undoubtedly being legally correct. The court was clear that it is the girl’s responsibility now, at the age of 17, to “face up to the obviously necessary step of obtaining a decree of nullity”. We hope that she is well-supported by the local authority and her legal advisors as she considers what happens next, and wish her and her baby well with the future after her dreadful ordeal.
If you would like to make an appointment to talk about anything raised in this blog, please give us a call on 01223 443333.