Flashcards in Non-marriages and sham marriages Deck (19)
what is a non-marriage
where there has been a departure from the formal requirements that’s is so substantial the courts hold there has been no marriage at all.
Berthiaume v Dastous
If a marriage is good by the laws of the country where it is effected, it is good all over the world… If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere.
Hudson v Leigh
Religious ceremony in South Africa it was agreed by them and the celebrant that the service would not create a legally valid marriage. Certain formalities were omitted from the ceremony. It was understood that upon their return they would have a civil ceremony, however the relationship broke down before this was possible.
What was decided in Hudson v Leigh
the wife could not seek financial orders. It was held the South African service was defective, and the judge held there had been no marriage.
What is the test arising from Hudson v Leigh
(a) whether the ceremony or event set out and purported to be a lawful marriage, (b) whether it bore all the or enough of the hallmarks of marriage; (c) whether the three key participants believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and d) the reasonable perceptions, understanding and beliefs of those in attendance.
Al-Daedy v Musawi
held that there is a presumption that if you acted like you were married, then common law will recongise you as married.
El Gamal v El Maktoum
- although the judge believed that the wife honestly believed there had been a marriage, the wife was not able to give enough evidence to prove that the marriage related closely enough to an actual ceremony.
Dukali v Lamrani
Married in a religious ceremony which took place in Moroccan embassy in London, performed by appropriate person, and valid as far as everyone involved was concerned. - Court held because marriage did not take place in premises approved for valid marriage in the UK could not be a valid marriage, hence UK law applies not Moroccan. Hence, a non-marriage.
MA v JA facts
married in Newcastle in a Mosque, which was authorised as a place for the performance of marriage. In 2009 question over validity of marriage, as audit performed in the Mosque and person who presided over ceremony had not been licenced as a person who could conducted marriages. He argued thought they were going to get a civil ceremony after, so did not think it was intended that this would be valid.
What was decided in MA v JA
Presumption of marriage in common law. Court held appropriate to apply to presumption here, in addition according the MA 1949 the obligation to comply with formalities is to prevent abuse, here clearly no abuse or fraud, V of someone else’s oversight, hence court has inherent jurisdiction despite lack of perfection.
Asaad v Kurter
Marriage in Syria, to Syrian wife and Turkish husband, this marriage not valid in Syria as failed to comform to Syrian marriage law, as Syrian national must get approval by state to marry another country. Court decides that cant be a vaild as not valid in country celebrated, due to failure to comply with technical formality, hence void marriage found. Not sufficient for a non-marriage.
K v A
marriage in Pakistan was probably clear that not valid as different types of Muslim, and not clear whether clear if one form of the religion could marry outside his part of the religion. Not valid in Pakistan. This was a particular requirement of Pakistani law which has no authority in UK. Held valid in the UK as acted like married
Where are the courts more likely to find a valid or void marriage
If technical breach court seem to find valid marriage or void marriage, so where parties innocent find something for tangible.
K v K
married in mosque in London, husband had already married. When new wife discovered treated herself as unmarried. But they remarried. Marriage conducted by phone, then went to Pakistan to have ceremony. Transpired husband was actually still married to his first wife. Seeks decree of nullity and financial relief. Successful, either bigamous or polygamous marriage which makes it a void marriage.
Hayatleh v Mofdy
Couple married in Syria and moved to UK and lived together for 14 years. Husband becomes disenchanted, he argues never a valid marriage as not registered in Syria, hence not valid under Syrian Law. CoA apply law of country in which marriage was conducted. Not clear if did comply with Syrian law, so HC judge endorsed by CoA finds as fact rather than law that couple were married.
What is a sham marriage
where the relationship is not genuine as there is no intention to create the other benefits of marriage- a marriage of convinces
legitimate to seek to preven t sham marriages for immigration purposes by imposing restrictions on the right to marry as long as proportionate and non-discirmiatory
the fact that they have no genuine relationship and never intended to live as husband and wife will not prevent the marriage from being valid