When is a marriage not a marriage?

Writing two law blogs in a row is quite unusual for us (last week we looked at a new case concerning confidentiality of financial documents in family proceedings). However, another interesting situation has just turned up in the law reports. The case of Dukali v Lamrani made us think it might be useful to explain how easy it is to fall foul of the laws about what makes a valid marriage, and the potential effects of doing so.

Ms Dukali and Mr Lamrani are both of Moroccan heritage but with English residence and citizenship. Their Moroccan origins were important to both of them and their families. Everyone wanted to be sure that the proposed marriage between the two of them was recognised in Morocco and that their children would have the benefit of dual citizenship, as they both had. They were married at the Moroccan embassy in a ceremony conducted by a Moroccan notary in front of their families and friends. Or so they thought…

Sadly, the relationship ran into difficulties and the couple parted ways. Ms Dukali saw a solicitor, who drafted a petition for divorce on the basis of Mr Lamrani’s alleged behaviour and sent it to him for comment and approval. This is the usual practice for solicitors who belong to Resolution, as we do, as it means that the terms of the divorce can be agreed in advance and disputes during the process are kept to a minimum. However, Mr Lamrani did not like the draft petition at all, and instead of facilitating the potential English divorce proceedings he decided that he would investigate the possibility of divorcing Ms Dukali in Morocco. This was possible under Moroccan law because both remained Moroccan citizens so he started those proceedings, and Ms Dukali played a full part in them: the couple’s divorce was granted in Morocco.

On the grant of the divorce, Ms Dukali was also awarded a financial settlement that would be considered meagre by English legal standards, and which took no account of the home that she and Mr Lamrani had shared with their daughter in London throughout their married life. She therefore applied to the English court for consideration of her financial position following her overseas divorce, which is something that former spouses can do if they can demonstrate a sufficient connection with England. On receiving notice of her application, her husband’s solicitors questioned whether, in fact, the couple had ever been validly married according to English law. This became the first question for the English court, before it could examine the question of the financial division. Were they actually married?

The problem was that the Moroccan Embassy is not registered as premises in which a valid marriage can be celebrated under English law by the General Register Office or the relevant local authority, and is not an approved or registered building under the Marriage Acts 1949 to 1994 for the purposes of celebrating a marriage. In the same way as you can’t legally get married in your own garden, you can’t get married in a consulate either, unless it has been approved for that purpose. It is established law, said the court, that for the purposes of marriage an embassy is within the territory of the receiving state rather than the sending one: this couple didn’t go to Morocco to get married just because their ceremony was in the Moroccan embassy. As the purported marriage took place in England, it had to fulfil certain criteria according to the law for it to be valid.

The court found that even though the ceremony was sufficient to fulfil all of the requirements for the marriage to be valid under Moroccan law despite not taking place in Morocco, in English legal terms it was a non-marriage. It could not even be considered to be a void marriage, because there was no attempt to comply with the requirements of the Marriage Acts in terms of venue: for the marriage to have been a void marriage, there would have to have been some defect in the correct procedure (such as for example the registration certificate for the premises lapsing unnoticed) while both of the participants and the celebrant all believed that the marriage would be valid. The Attorney General saw these proceedings as important enough for him to intervene on public policy grounds, arguing that the state has a significant interest in upholding the formalities for constituting a valid marriage, due to the economic consequences that flow from marriage in terms of taxation and benefits. He supported the husband’s position in the proceedings, and the court found in their favour: there was no marriage under English law.

Without a marriage (not even a void one), the court went on to say, it was unable to allow Ms Dukali access to financial remedies from the English court: it did not have the power to do so. She was left with her paltry financial settlement from the Moroccan proceedings, and presumably with access to the piecemeal solutions available to cohabitants under English law.

The court noted that many members of the Moroccan community have gone through similar ceremonies at the Moroccan embassy over the years. There must be a suspicion that this is not the only embassy where these mistakes have been made, leading to the possibility that many hundreds of English couples may well believe they are validly married whereas, in fact, they are not. This could leave them without any recourse to the court for a fair division of assets if their marriages break down.

The judge said, “I repeat my sympathy for the plight of the wife, but I cannot act out of mercy and must apply the law as I believe it to be”. However, the plight of one may well turn out to be the turmoil of many.

If you’d like to discuss anything about this article or any matter of family law, please call Gail, Sue, Adam or Simon on 01223 443333.

 

Join the discussion One Comment

  • Najat says:

    Hi, I have a question. I am a British citizen, as born here in the uk. 12 years ago I was married in Morocco, I have a legal Moroccan marriage certificate. My husband was granted all of the necessary visas to be able to live here in the UK with me. We have two children and he is now also a British passport holder. I want a divorce though, would I need to go to Morocco for this or could we do the divorce under the British law?

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