Registering marriage in shifting sands

Registrations overseas

Another critical issue that has come to the fore in recent months and years is the problem of registration of marriage. We are seeing more and more evidence that entry clearance officers (‘ECOs’) at the British High Commissions insist on registration of marriages performed overseas, even though UK authorities have previously accepted that, in the relevant overseas countries, marriage by custom or ritual performance is sufficient to enter into lawful unions. Ramnik Shah’s article in a previous issue of this Journal attests to such demands made by ECOs of those who would have previously simply followed Hindu, Sikh or Jain marriage rites to obtain recognition in Kenya. 3

Such pressures can lead to some strange events taking place in the family courts too. An illustration came in the form of a Court of Appeal case, Naran (now known as Halai) v Patel. 4 The facts show that the Gujarati ‘spouses’ went through a register office ceremony in Nairobi, intending to leave the Hindu ritual solemnisation until after a visa was granted. At some point, after a discussion between the couple, it was decided not to go ahead with the Hindu marriage ceremony. This case ended up in court, with one party filing for nullity, while the other, contesting the nullity proceedings, filed a parallel divorce petition. On the one hand, the facts indicate that the families concerned were cautious about planning the marriage arrangements pending clearance of immigration formalities. On the other hand, the ‘spouses’ were also caught between two obligation systems; once it was clear that the arrangements had broken down, they had to negotiate their way out of the ‘marriage’ entered into at official level, but which probably only existed as a first formality in the longer process of solemnisation within their socio-legal order. It is notable that the arguments in court did not reflect the Hindu concerns here – that there was no marriage to speak of, although a retrial of all the issues was directed by the Court of Appeal.

Another configuration of related issues is presented by a case of a Hindu Gujarati man in which I was recently asked to write an expert report. The man had gone through a registration of marriage in Gujarat and subsequently applied to visit his parents in the UK. On another occasion, he applied as the spouse of the woman with whom he had undergone the registration and, by now, a Hindu marriage ritual too. He was refused this time on the basis that, when previously applying for a visitor visa, he had not declared to the ECO that he was married, and also because the registration and ritual celebrations had not been conducted within a short time of each other as is, so the ECO stated, the habitual practice among Hindus. I took the route of arguing that the lack of a declaration of marriage by a Hindu from Gujarat may not be altogether unusual if, at the time of applying for a visa, the parties had only gone through the formal registration process. After all, for Hindus a marriage may not be regarded as being concluded until after the performance of relevant rituals, 5 and there are several cases in which the Indian courts have held that registration of marriage is not enough if there is no relevant ritual solemnisation. 6 Of particular interest here is the ECO’s contention that there was cause for further doubt due to the spacing out in time of the registration and ritual ceremonies. In that case, the delay was easily explained by the fact that financial considerations, including the need to raise dowry for the marriage, had prevented speedy conclusion of the relevant rituals.

Going behind registration in Scotland: a recent case

A significant new case comes from the Scottish Court of Session’s Extra Division. This case, H v H, 7 although brought through the family courts in Scotland, is likely to have significant implications for immigrants or those intending to be so. It concerns an appeal against a decision of a first instance court which had refused to grant a declarator of nullity to a woman pursuer (appellant) who claimed it on the basis that the civil marriage registration had not been followed by a Muslim nikah or rukshati ritual (spelled ‘rushkati’ in the judgment), and that the defender (respondent) had refused to go through such Muslim and/or customary solemnisation rites. After the civil registration, the defender had managed to obtain a one-year visa on the basis of being married to the pursuer and, somewhat over a year later, had acquired indefinite leave to remain (‘ILR’) on the same basis (it would of course now be at least a two-year wait for ILR to be issued). However, the parties had never cohabited, the defender continually attempted to delay going through the nikah to solemnise the marriage according to Muslim rites so that the parties could cohabit thereafter, and he had established a relationship with another woman some time after the civil registration.

The judgment of the Extra Division is important in that it opens the door to registered marriages being declared null where registration is not followed, in the case of Muslims, by a nikah or, in the case of other communities, by their own particular societal and/or religious rituals. The judgment of Lord Penrose, the most detailed one of those given by their Lordships, uses strong language in agreeing to grant the declarator of nullity, and it is of some concern that it could result in undue impact on marriages which are normally celebrated, particularly among many ethnic minority communities in the UK, in at least two stages.

Since it is widely known that the official element of registration needs to exist in order to secure state recognition, the overwhelming majority of marriages involve such civil registration. However, normally an additional ritual and/or community-sanctioned stage is generally followed amongst many groups of people, and this may take place either simultaneously with the registration procedure or subsequent to it, as was the expectation in this case. It is this latter type of case, also illustrated by the fact situation in the above-mentioned case of Naran v Patel, that risks falling foul of dicta by Lord Penrose:

‘In my view, however, an agreement that the parties will not become husband and wife in any real sense until some further condition is satisfied in the indefinite future is not a marriage. It might be betrothal. But what is material is that where parties have agreed that, notwithstanding the exchange of words of consent, the relationship that the language used would normally establish will not be established between them, the proceedings are sham, and should not be recognised. I would allow this reclaiming motion and grant decree as concluded for. I would also move your Lordships to report the whole proceedings to the Lord Advocate for consideration whether criminal proceedings should be initiated.’ 8

In so formulating the issue, his Lordship was conscious of the religious convictions which informed the decision-making of the parties. He said:

‘The parties shared a belief system that explained their position, that marriage could be constituted only by the performance of prescribed religious ceremonies. Whatever they did in performing the civil ceremony, it did not amount to consent to marriage, because they envisaged that the result would exclude all of the irreducible minimal requirements of marriage.’ 9

It was as a result of the finding that there was no actual consent to marriage at the time of the registration that a declarator of nullity followed. In so finding, the Extra Division were not so much concerned that the requisite consent was negatived by the defender’s actions after the registration (as outlined above), which showed that he had lost interest in going through the Muslim rites. Rather, the remarks in the judgment appear to be so all-encompassing as to catch within their scope all marriages which might stagger the registration and ritual solemnisation in that order, thereby laying them open to the possibility of annulment. In most such cases, it seems that the ritual stage follows closely upon registration (if not virtually integrated into the marriage rituals). There is, however, a real risk that the longer the gap between the two stages, the greater the likelihood that a marriage will be open to annulment and the greater the likelihood that immigration and other authorities begin to question the validity of a marriage. It is of little comfort that this judgment could be picked upon to open up complex family arrangements within minority ethnic communities, since marriage and annulment generally have important consequences for persons beyond the couple in question.

Some wider implications

The argument that H v H is a Scottish case, and therefore of limited application, might make it much less likely to be applied in the English jurisdiction. In other areas of the law on marriage, the presumption of marriage being a recent example, the English courts have been quite ready to adopt Scottish jurisprudence without much argument to the contrary. 10 It is possible, however, that the English courts would desist from opening up the kind of situation in H v H by casting doubt on the registration process itself, given the weighty authority of the Lords in Vervaeke v Smith. 11 In the kind of fact situation presented in H v H, the complaining party would in any case have recourse to the well-worn principles of nullity on grounds of non-consummation.

The worry is, however, that the case could be used to achieve immigration control ends. There is a contradictory position developing in UK law on marriage solemnisation taken as a whole. On the one hand, the immigration authorities appear to be increasingly insistent about the need for those marrying overseas to register, although that may not be a prerequisite for validity in the lex loci. This is well illustrated by the examples already cited above, even though there are other instances where the authorities have accepted that non-registered overseas marriages can be ‘saved’ through the presumption of marriage. 12 On the other hand, H v H signals that we might have to get ready for the ever-loosening attitude in British jurisdictions towards registration and its consequences for the status of marriage.

I would not wish to over-emphasise the danger of this approach. If applied carefully, sensitively and with thought to the wider consequences, it may occasionally be appropriate for the authorities to look behind registration to examine whether there was indeed a sham marriage, even though, as their Lordships in H v H recognised, to define a marriage in a way that is universally applicable is an extremely difficult, if not impossible, job. From a Muslim viewpoint, it could hardly be objected that the judges here were simply responding to what could hardly be termed a marriage (and the same could be said of the ‘marriage’ in Naran v Patel). As Lord Penrose stated:

‘… religious Muslims do not become man and wife without due observance of the ceremonial requirements prescribed by their religion. They do not live together prior to those ceremonies because they have not entered into the state of marriage.’ 13

Two further questions are still unresolved by this judgment. For the first we can refer back to what Lord Penrose said about the status of the registration ceremony. If the requisite intention or consent that he looked for is not present, it may be that it is a betrothal or perhaps something else, but does not constitute the marriage. This then opens up the issue of what precisely the status of the registration ceremony is. If registration is not enough, is it even necessary? If it is not necessary, are we in Britain inevitably moving to a point where we might need to explicitly admit that rituals that result in a recognition among the members of a social or ethnic group that a marriage has been concluded be also recognised for official purposes? So far the English or Scottish courts have not seen fit to recognise this possibility, except in the limited instances of presumption through long cohabitation. 14 However, questioning the status of registration in the way that their Lordships have done has the potential to lead to so much insecurity that a fall-back position might need to be adopted that allows recognition of marriage to proceed consequent to ritual solemnisation.

Prakash Shah

Queen Mary, University of London